Mon. Sep 20th, 2021

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Biden’s Justice Department Argues to Keep H-1B Higher Wage Rule

3 min read
H-1B Higher Wage Rule

H-1B Higher Wage Rule: Presidents have a way of moving back as many of their predecessors’ actions as possible. However, the Biden government is right now protecting an H-1B regulation originally pushed during Trump’s tenure. If that regulation sticks around, it could have a huge impact on the visa system.

In January 2021, Trump’s Department of Homeland Security (DHS) gave a final rule. That takes allows for the ranking and selection of H-1B registrations based on wage levels. The rule’s execution, initially scheduled for March, was pushed to 31st December 2021. Then came the legal pushback, with a lawsuit alleging that prioritization based on wages was “inconsistent with the text of the Immigration and Nationality Act (INA).”

Presently, in a new legal filing in the U.S. District Court (Northern District of California), the U.S. Department of Justice is arguing that the final rule is valid. “Although the INA prescribes that H-1B visas be given ‘in the order in which petitions are filed,’ 8 U.S.C. 1184(g)(3), the INA is quite concerning how to order such simultaneous submissions,” reads the cross-motion. “If a ‘statute is silent or ambiguous with respect to the specific issue‘. The Court should defer to the agency’s interpretation so long as it is ‘based on a permissible construction of the statute.’

Biden’s Justice Department Argues to Keep H-1B Higher Wage Rule

The Justice Department added: “In deciding how to order simultaneous or almost simultaneous submissions, DHS turned to an important purpose of the H-1B visa program and reasonably determined that a wage-level-based selection process will carry implement that purpose of the statute and that nothing in the statute requires random selection.”

This back-and-forth over the final rule isn’t the only indication that the Biden government is potentially amenable to the idea of giving H-1B visas based on wages. Biden’s U.S. Citizenship Act of 2021 would focus on visas based on wages. And give both the Secretaries of Homeland Security and Labor the ability to determine the appropriate wage levels. However, it’s unclear whether that legislation will pass in its proposed form—things have a funny way of changing as they continue through Congress.

[Refiling Permissible for FY2021 H1B Petitions Rejected Based Solely on Start Date]

What’s sure is that prioritizing on H-1Bs as indicated by higher wages would essentially change the current visa system. While it wouldn’t necessarily affect those organizations utilizing the H-1B. As it was initially proposed (i.e., to pull in highly specialized (and presumably expensive) talent otherwise unavailable within the U.S.) It would have a seismic impact on the consulting and business-services firms that apply for thousands of H-1Bs for workers who aren’t necessarily as specialized. It would also influence the utilization of the H-1B as a tool for hiring new graduates. Whose starting salaries are often lower than the average for their specialization.

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