A D.C. federal judge has been asked to uphold a policy set by the Trump administration that awards H-1B specialty occupation visas based on salary, rather than the existing lottery system. The Biden administration claims the policy is procedurally valid and that the Immigration and Nationality Act (INA) supports the approach.

In a new motion, the Biden administration argues that the wage-based model introduced under the Trump administration is valid and was legally adopted by the Department of Homeland Security (DHS) Secretary Chad Wolf. The policy has been scrutinized by multiple legal challenges. A federal judge in California ruled the policy is invalid in September 2021 on the basis that DHS Secretary Wolf was not legally installed in the position and, as such, did not have the authority to enact the policy. The Biden administration claims the D.C. court is not bound by the decision of the California federal judge. Subsequently, other judges have sided with the California judge’s findings.

The Biden administration, however, argues that former DHS Secretary Wolf had the authority to implement the policy. Further, the administration claims it was within the DHS’ authority to move to a wage-based system, as the law does not specify how to handle simultaneous visa applications.

The H-1B visa, capped at 65,000 per year, is a critical nonimmigrant work visa that often leads to employer sponsorship for legal permanent residence. There are an additional 20,000 H-1B visas set aside for individuals with a master’s degree or higher from a U.S. institution. Currently, eligible beneficiaries who are not selected under the regular 65,000 bachelor’s cap are then included in a master’s cap, doubling the chances of being selected and receiving one of the coveted visas.

While the law states that the H-1B visas must be processed in order of received, it is silent on how to handle simultaneous submissions, which is what occurs each year during the annual registration process when all the submissions are received at the same time. Under the current system, a random lottery occurs. The proposed wage-based system would drastically change the H-1B program, prioritizing submissions with the highest proposed wage level instead.

According to the Biden administration, in the last seven years, USCIS has received enough petitions in the first five days to exceed 85,000 visas available in the cap. The Biden administration maintains that the high number of simultaneous submissions the program currently experiences add further complexity to processing visas in the order they are received, a problem they believe would be resolved with the proposed wage-based system.

Several groups sued the Biden administration in May 2021, claiming DHS Secretary Wolf lacked the authority to implement the policy. In addition, they claim it is a violation of the law to issue visas in any way other than in order submitted. In September 2021, the group asked a judge to vacate the wage-based rule.

The wage-based selection process was introduced just prior to the Trump administration’s exit from the White House. When Biden became president, his administration stated they would delay any changes to the current lottery system until the end of the 2021 calendar year.

President Biden has continuously signaled his support for a wage-based H-1B system, even before taking office.  As such, it remains a possibility that the Biden administration could eventually choose to publish its own rule, regardless of the outcome of the current lawsuits.  In its new filing, the administration has urged the court not to rule on the legal validity of the policy, even if the court decides former DHS Secretary Wolf lacked the authority to implement it. This could be a sign the administration plans to publish its own rule and does not want the issue foreclosed.

ILBSG continues to monitor the ever-evolving laws and policies of U.S. immigration. If you have questions about any immigration-related topic, contact us at ILBSG. We are here to help.

h-1b H-1B Wage Rule