What H-1B Stakeholders Must Know
- This rule will change the selection process for H-1B this year.
- The anticipated effect of the rule is that all Level 3 and Level 4 petitions, approximately 75% of Level 2 petitions, and none of the Level 1 petitions are likely to be selected for H-1B this year.
- This rule can be stopped by Congress and can be both delayed and stopped by Mr. Biden.
- This rule is likely to be challenged and reversed in court.
- H-1B filers should stay flexible in their preparation for H-1B filings. Things could change rapidly, but you should still have a few days to prepare. This rule could be frozen as early as January 20.
- This rule applies only to H-1B quota cases. It does not apply to H-1B amendments, extensions, or transfers.
How Mr. Biden, Congress, and the Courts Can Stop This Rule
The Biden administration has promised to issue a regulatory freeze on the afternoon of January 20, 2021 on all regulations that go into effect only after that day, Mr. Biden’s swearing in. That should also freeze this rule and open it for reconsideration. Normally, once a final rule has been published, it can only be withdrawn by making another rule or invalidated by a federal court. But, Mr. Biden can delay its implementation substantially. This rule is also currently before Congress for another 45 days or so. During this time, Congress, by simple majority, can also invalidate the rule.
Mr. Biden has shown a keen sensitivity towards the need of US businesses to have available sufficient qualified professional workers, but has also expressed his reservations towards H-1B abuses. Thus, there is some doubt about the approach he is likely to take. The unemployment figures in the professional services industries, though down from the beginning of the year 2020, have experienced good gains in the past few months. Mr. Biden will most likely consider the fact that the final rule has not ignored many relevant factors including its impact on: employers’ needs, small businesses, graduating foreign students, and educational institutions. I believe there is an excellent chance that this rule will be frozen on 20 January.
The legal infirmities in the rule are too many to enumerate, but the most important ones should favorably persuade a court.
First, this rule disregards the plain language of the law that requires H-1B holders only to possess professional credentials. USCIS is legally not allowed to create novel requirements for qualifications already defined by Congress.
Second, the assumption that higher salary necessarily implies higher skills is erroneous. A PhD holder in nuclear physics just entering the workforce could easily be making less money than an experienced researcher without advanced degrees. The two should not be compared against just one criterion – wages.
Third, USCIS comments in the rule are internally inconsistent and legally insufficient.
Fourth, the USCIS has swept under the rug any consideration of how their rule affects small businesses, who may not be able to pay high salaries to stay competitive for the same jobs against bigger companies.
Fifth, there are valid concerns from educational institutions for their international students seeking entry level jobs. The schools note that the ability to find a job is one of the key considerations for any student to undertake studies.
Sixth, all the stakeholders have relied on this system for over 50 years. The USCIS wants to change that with a 30-day notice and comment. None of these grounds bode well against a judicial challenge.
The agenda of the Trump administration was always an assault on legal immigration. That the means they used were illegal has been proven repeatedly. They have lost every major lawsuit against their regulatory changes. Going forward, whether or not the Biden administration vigorously opposes a challenge to the Trump rule in court, it is reasonable to assume that this midnight rule will also be invalidated.
The author is Managing Attorney at Immigration.Com