U.S. District Court Strikes Down Final Trump-era H-1B Wage Rule

One of the last Trump-era attempts to adjust the H-1B visa is officially dead on a technicality. 

U.S. District Judge Jeffrey White of the United States District Court for the Northern District of California has ruled that the Trump administration’s “Final Rule,” designed to transition the current H-1B lottery system to one based on wage levels, is invalid because then-acting DHS Secretary Chad Wolf “was not lawfully appointed… at the time the Final Rule was approved.”

The Final Rule was originally scheduled to take effect in March 2021, before the Biden administration delayed it to December. “At this time, current rules are expected to remain in place, under which USCIS will select registrations through a random lottery as it has in the past,” immigration law firm Berry, Appleman & Leiden LLP wrote in a blog posting about the judge’s ruling. “The government has not yet indicated whether it will appeal the ruling. We cannot rule out that the Biden administration could pursue a new regulation to implement a wage-based H-1B allocation process, but this is unlikely to happen before the upcoming cap season.”

In theory, though, the door is still open to the Biden administration readjusting the H-1B system to accept applicants based on higher wages. Biden’s proposed U.S. Citizenship Act of 2021, for example, would prioritize visas based on wages, and give both the Secretaries of Homeland Security and Labor the ability to determine the appropriate wage levels. In August, Biden’s first regulatory agenda also hinted at the administration’s intention to “modernize” H-1B requirements, although details remain vague; it’s not outside the realm of possibility that some of those “modernizations” could include salary regulations for H-1B applicants.

Tethering H-1Bs to higher wages likely wouldn’t have a massive impact on companies that use the visa in a limited fashion to draw highly specialized talent from overseas. However, higher minimum wages would have a significant impact on the budgets of the consulting and business-services firms that apply for many thousands of H-1B visas every year, then subcontract those H-1B workers to other companies. Critics of the H-1B system have argued that an application system based on higher wages would curb abuse of the visa.

10 Responses to “U.S. District Court Strikes Down Final Trump-era H-1B Wage Rule”

  1. HA HA HA

    So, the previous amateur administration appointed Chad Wolf in a rush to fill the position and failed completely (was that on purpose?.) Either way, how can any of the measures of the previous administration can be taken seriously when they fail on the basics of government management?

    On top of that, a bunch of people blames the winner candidate Biden for not continuing with the work visa policies of the loser candidate Trump. Now give me a break.

  2. Jake_Leone

    For the people for whom it should matter, the actual high skilled foreign tech workers who have been vetted either by the OPT program or tough interview. It is a no-brainer. Ditch the lottery and assign H-1b visas based upon salary. Those very people filed a lawsuit, suing DHS to stop assigning H-1b based upon the brain-dead random chance lottery.

    Immigration attorneys want to keep the brain dead lottery. Because it creates more redundant and repeat business for them. Redundant because Offshore Outsourcing companies stuff in a huge number of redundant visas. Repeat business, because the 75% of applicants that don’t win an H-1b visa, have to repeat the process year after year.

    If we switched to a salary based allocation of H-1b visas. The Offshore Outsourcing companies (which pay the lowest salaries) would drop out of the H-1b program. There would be a 50% reduction in applications that first year. And, as the back log clears up, the repeat business would also go away. For immigration lawyers, that cannot be allowed to ever happen, and any attempt to do this must be stomped.

    Never mind the fact that Offshore Outsourcing companies remove millions of ordinary jobs to India. And the fact that OPT workers wait for years for an H-1b visa. No, those people and lives are not important. What is important is that immigration lawyers get paid to complete 200,000 redundant H-1b applications each year, forever until doomsday.

    The change to a salary based allocation of H-1b visas will help Silicon Valley companies. It will help OPT workers here in the U.S. Offshore Outsourcing companies, that do absolutely ZERO innovation and remove millions of jobs, simply should not be allowed to use the H-1b program (but they are big political donors so that’s never going to happen).

    Immigration lawyers have productized the H-1b program and falsely inflated demand. If we change to a salary based allocation of H-1b visas, the first year applications would drop by 50%. The 2nd year, they will be down by 75% (or to put it another way, the demand for H-1b visas would be at supply). In subsequent years, there would be a surplus.

    You can easily eliminate the impact on non-profits by allowing non-profits to fill in a checkbox, saying they are applying for an H-1b visa and are a non-profit. We can reserve a percentage of H-1b visas that is equivalent to the percentage of non-profit applications, and assign these visas using a random chance lottery, to the non-profits. Such a change would actually greatly help non-profits get H-1b visas, as they would no longer have to compete with the Offshore Outsourcing companies for H-1b visas.

    The change to a salary based allocation of H-1b visas will actually create more competition for my job. With the Random chance lottery, half the H-1b visas go to Offshore Outsourcing companies which concentrate on jobs that are well scripted in accounting, HR, dbadmin, support. The people who can compete for my job have to have domain experience, and most of those guys are in Europe and Israel. People in Europe or Israel won’t relocate to Silicon Valley for 90k a year. You’ll need to pay them at my level or significantly higher. So by all means keep the brain dead lottery, keep making it impossible for people here on an OPT to stay at my company and get domain experience.

    It is impossible for the career politicians to tell the truth about the H-1b program. Big money buys their silence and compliance.

  3. jake_leone

    Apparently, for the Democrats, what matters is who is willing to pay up. That 100 million dollars Silicon Valley paid to the Democratic campaign was a huge bargain.

    This change would have raised h-1b wages by at least 25,000$/yr. Multiply 25,000 x 85,000 H-1b visa and you get 2,125,000,000 (2.13 Billion dollars). If 100 million can save you 2 billion dollars, even if it is a bribe, what Silicon Valley Oligarch wouldn’t pay out.

    The Biden administration had delayed this change and will never implement it.

    This tells us that Silicon Valley only cares about the H-1b visa to the extent that it can keep engineering salaries stagnant. If this change were in effect, Silicon Valley would be able to get in the valuable engineers, they pay their mouth pieces to talk about. But it is all a big rouge, a horrid lie.

    This is all about using a few million to save billions in salaries, nothing more. And it is holding us back and causing millions of ordinary well scripted positions in HR, accounting, support, and DB administration to be easily moved to India.