Sep 17, 2021
Update on the H-1B Cap Lottery System
Jonathan A. Grode
On Wednesday, a California federal judge struck down a controversial Trump-era rule which aimed to change the H1-B lottery system from the current random selection process to one based upon prioritizing those with higher salaries. U.S. District Judge Jeffrey White joined a growing list of federal judges who have found that former Acting Secretary of Homeland Security Chad Wolf was not lawfully appointed as Acting Secretary, and therefore lacked any authority to implement the new January 2021 rule.
The January 2021 rule would have required the USCIS to deviate from the random lottery system to one where H-1B visas were prioritized by wage level. Under the January 2021 rule, employers seeking to hire foreign workers on H-1B visas would have needed to indicate the highest wage level that matched their offered salary, and USCIS would then have allotted H-1B requests based upon that wage level, ultimately allowing those with the highest salaries to jump to the front of the line.
Following Judge White’s decision, it is now unlikely USCIS will be able to implement the prioritization rule as planned in time for the 2023 H-1B cap season, and registrations will likely continue to be selected by random lottery as they have been in previous years.
In its arguments, the Chamber of Commerce also asserted that the January 2021 rule conflicted with the Immigration and Nationality Act, which indicates that visas should be issued in the order in which petitions are filed. Judge White failed to address this issue. Therefore, litigation will continue surrounding whether DHS is permitted to prioritize the selection of H-1B visas based on factors other than filing date (such as wage level) in the future. Our firm will continue to track this litigation, and will provide any updates on the issue.
If you have any questions regarding this ruling, the H-1B Cap process generally, or your specific case, please feel free to contact our Firm to schedule a consultation.