Lawsuit: H-1B rule favoring higher wages is unfair, unlawful

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In January, the Trump administration issued a rule that changed how H-1B visas would be distributed. In the past, 85,000 H-1B visas were awarded each year by lottery, although 20,000 were reserved for workers with advanced degrees.

The Trump administration’s rule was partly intended to limit H-1B visas during the pandemic, when so many American citizens were out of work. It was also intended to fight what the administration perceived as exploitation and abuse by employers who used the H-1B program to fill low-wage, entry-level positions instead of the higher-wage, specialty occupations the program is supposedly meant to allow.

The new rule, which would have gone into effect in March but which was delayed by the Biden administration, increased the emphasis on advanced degrees. However, it also required those degrees to be more directly related to the specialty occupation in question. It also increased the wages required of employers.

Under the previous rule, entry-level specialty occupation workers had to be paid wages in the 17th percentile of the profession, based on salary surveys. The Trump administration rule hiked that to the 45th percentile. Similarly, wages for higher-skilled workers would have jumped from the 67th to the 95th percentile.

Business groups sue based on law, procedure

Businesses in lower-wage areas and others who can’t afford the jump in wages have sued to stop the rule from going into effect. The groups include nonprofits and rural employers and is represented by lawyers from the American Immigration Lawyers Association, along with two private law firms.

Their first argument is that the Trump administration violated the law by appointing an “acting” homeland security director instead of having that role filled with the advice and consent of Congress. Several federal judges have determined that, when the head of an agency is merely “acting” instead of properly appointed, the rules they make are invalid.

They also argue that the rule is invalid because it essentially makes H-1B eligibility depend upon a single factor – wage level – rather than a group of factors as is required by the Immigration and Naturalization Act.

They also claim that the Trump administration passed the rule in an “arbitrary and capricious” manner, which violates the Administrative Procedure Act.

Ultimately, the rule may make hiring H-1B professionals too expensive for many companies who can’t find U.S. based workers to meet their needs.

The rules for H-1B visas are constantly changing. If you are interested in coming to live and work in the U.S., contact Yew Immigration Law Group. We have years of experience helping people locate and apply for the right visa for their situation.