In a court filing on July 23, the Biden administration defended a Trump-era policy that would award H-1B petitions based on salary, prioritizing high salaries over lower salaries.
Background
In the final weeks of the administration, the Trump administration published the final rule. In February, the Biden administration delayed the rule’s implementation until the end of the year to allow DHS to design a new system for visa selections.
Opponents of the rule point out that it goes against the Immigration and Nationality Act, which states that H-1B visas should be granted “in the order in which petitions are filed.” However, INA doesn’t explain how to deal with high-volume simultaneous filings, as is the case with the H-1B cap season.
The Biden administration defends the wage rule based on the following:
- “The rule was properly issued by a duly authorized official . . . The service of both Acting Secretary Kevin McAleenan, who succeeded Secretary Kirstjen Nielsen after her resignation, and Acting Secretary Wolf, whom Mr. McAleenan designated as his replacement as Acting Secretary, were lawful and valid.”
- “Although the INA [Immigration and Nationality Act] prescribes that H-1B visas be issued “in the order in which petitions are filed” . . . the INA is silent with respect to how to order such simultaneous submissions. 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.’” [Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc.]
- “Finally, in the course of the rulemaking at issue here, DHS adequately responded to all significant comments,” according to the Biden administration. “Specifically, DHS addressed the issues raised in the comments highlighted by Plaintiffs concerning recent graduates and reliance interests with reasoned explanations.”
Erickson Insights
It is expected that the Biden administration will lose this legal challenge on account of the fact that the rule was proposed at the time when Chad Wolf was unlawfully acting as DHS Secretary. With that outcome, the Biden administration could issue their own version of the rule from the current Homeland Security secretary, Alejandro Mayorkas.
The wage rule was and is unpopular among various worker, student, and employer interest groups, due to fears that it could exclude early-career professionals from accessing the H-1B visa in favor of more experienced and higher salaried professionals.