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Only the highest paid will be selected: An expert decodes Trump’s parting shot at H-1B

4 min read
H-1B techies

Recently, the Trump government has published a final rule (or regulation) that will select H-1B applicants this year based upon the compensation level in which they are placed. The wage levels are gotten from the US Department of Labor information, which qualifies employees based upon a combination of the education and experience required for their job: Level 1 (entry-level); Lev 2 (qualified); Level 3 (experienced); Level 4 (fully competent). This rule will cause serious impediments for US businesses if it is allowed to stand.

What H-1B Stakeholders Must Know

  • This rule will change the selection process for H-1B this year. 
  • The anticipated impact of the rule is that all Level 3 and Level 4 petitions, roughly 75% of Level 2 petitions, and none of the Level 1 petitions are probably going to be selected for H-1B this year. 
  • This rule can be stopped by Congress and can be both postponed and stopped by Mr. Biden. 
  • This rule is probably going to be challenged and reversed in court
  • H-1B filers should remain adaptable in their preparation for H-1B filings. Things could change quickly, yet 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 doesn’t apply to H-1B amendments, extensions, or transfers.

How Mr. Biden, Congress, and the Courts Can Stop This Rule

The Biden government has vowed to give a regulatory freeze on the afternoon of 20th January 2021, on all guidelines that become effective exclusively after that day, Mr. Biden’s swearing-in. That should also freeze this rule and open it for reconsideration. Normally, when the last rule has been published, it must be removed by making another rule or invalidated by a federal court. Yet, 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 adequate qualified professional workers however has also expressed his reservations towards H-1B abuses. Hence, 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 encountered great increases in the previous few months. However, Mr. Biden will probably consider the way 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 accept there is a fantastic chance that this rule will be frozen on 20 January.

Trump Administration Rules

The lawful infirmities in the rule are too many to enumerate, however, the main ones should favorably persuade a court.

First, this rule disregards the plain language of the law that requires H-1B holders only to have possessed professional credentials. USCIS is legally not permitted to create novel requirements for qualifications already defined by Congress. Second, the assumption that a higher salary necessarily implies higher skills is wrong. A Ph.D. holder in atomic material science simply entering the workforce could easily be making less money than an experienced researcher without advanced degrees. The two should not be analyzed 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 will be unable to pay high wages to remain competitive for similar jobs against bigger organizations. Fifth, there are valid worries from educational institutions for their international students seeking entry-level jobs. The schools note that the ability to get a find a job is one of the key considerations for any student to undertake studies.

[Will introduce immigration bill ‘immediately’ after taking office, says Joe Biden]

Sixth, all the stakeholders have relied on this system for more than 50 years. The USCIS needs to change that with a 30-day notice and comment. None of these grounds look good against a judicial challenge.

The plan of the Trump government was always an attack on legal immigration. That the means they utilized were illegal has been proven repeatedly. Also, they have lost every major lawsuit against their regulatory changes. Going ahead, whether or not the Biden government vigorously opposes a challenge to the Trump rule in court, it is reasonable to expect that this midnight rule will also be invalidated.

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