On Wednesday, U.S. District Judge Jeffery White struck down a Trump-era rule, which would have overhauled the existing annual H-1B lottery and replaced it with a wage-based system instead.  Under this rule, H-1B petitions with the highest proposed wage levels would have been granted selection first, with lower wage levels only being considered after all the highest wage level registrations were already selected, if any available visas remained. In other words, registrations for Level IV wages would all be picked before USCIS moved on to Level III, and then to Level II, and so on.

The new rule was set to go into effect on December 31, 2021, meaning it would have impacted next year’s H-1B cap. As such, Judge White’s decision comes as welcome relief for many who have been concerned about the impact of a wage-based system. Particularly for small businesses or those recovering from losses suffered during the Covid-19 pandemic, a wage-based system would have been greatly restrictive and likely prevented companies from securing the important resources they need.

President Biden has continuously signaled his support for a wage-based H-1B system, campaigning on this issue even before he took office. One of his first official actions as president was introducing an immigration bill that included the wage-based system as one of the provisions. During the course of this lawsuit, the Biden Administration defended the rule on several grounds and actively sought to preserve it. As such, it remains possible that we could see further movement on a wage-based system down the road, depending on how the Biden Administration chooses to move forward.

In the meantime, next year’s H-1B Cap will remain a lottery system. While the possibility remains that the Biden Administration could choose to publish its own rule, for now at least, this is great news.

ILBSG will keep its clients updated on any new developments in this area. If you have any H-1B related questions, reach out to an ILBSG attorney today. We are here to help.

h-1b H-1B Wage Based immigration