September 17, 2021
A federal judge vacated a Trump-era rule that would have prioritized higher-paid workers for high-skilled H-1B visas and thus significantly threatened employers’ ability to hire junior H-1B workers. The ruling was based on procedural flaws in the issuance of the rule rather than its substantive content and will likely be reissued by the Biden administration.
The Department of Homeland Security had predicted that no entry-level workers would be chosen under the new rule. Further, a significant percentage of “level 2” workers (i.e., more experienced, "qualified employees") would not be chosen.
The regulation would have amended the process by which H-1B applicants are awarded visas, granting H-1B visas to workers who are offered the highest salaries. Currently, H-1B visas are allocated via a randomized selection process.
The Court ruled that former Acting DHS Secretary Chad Wolf had not been properly installed, and therefore lacked the authority to issue the regulation. "Because Mr. Wolf was not lawfully appointed as acting secretary at the time the final rule was approved, the court concludes the rule must be set aside," Judge White said.
What it means: The Biden administration sought to preserve the rule and will likely issue a similar rule. Any new rule that gives priority to higher-paid workers for H-1B visas will undoubtedly undergo legal challenge from the employer community.