H-1B Visa Rule About To Die For Good

Of note. May reduce the relative attractiveness of Canada:

An H-1B visa regulation that would make it less likely international students can work in the United States appears ready to die for good. Critics asked why the Biden administration was defending an immigration rule championed by Trump adviser Stephen Miller. The answer is the Biden administration is no longer defending the rule.

“Our plaintiffs are thrilled with the government’s apparent, yet belated, decision to no longer defend the H-1B Lottery Rule,” said Jesse Bless, director of litigation at the American Immigration Lawyers Association (AILA), in an interview. “While we wish that the government had not waited until we had completed briefing on cross-motions for summary judgment, we are fully committed to settlement negotiations, which will hopefully ensure that our plaintiffs receive all the relief to which they are entitled.” 

The case is Humane Society of NY, et al. v. Alejandro Mayorkas, et al. “Following the completion of briefing in this case, the parties entered into settlement negotiations,” according to an unopposed motion filed in the case on December 6, 2021. “There is now a good-faith reason to believe that the parties will reach an agreement in the near future that will fully resolve this matter. However, the parties need additional time to confer and fully resolve the issues presented. In light of the current state of play, plaintiffs hereby move for a sixty-day extension of time to file the Joint Appendix of the Administrative Record which is due on December 6, 2021. Plaintiffs conferred with opposing counsel and they expressed support for the requested extension. The parties anticipate that sixty days will allow the parties to exhaust the possibility of resolving this case without further involvement of the court and move for a dismissal of this matter.”

Plaintiffs’ attorneys in the Humane Society case, in addition to Bless, are Greg Siskind (Siskind Susser), Jeff D. Joseph (Joseph & Hall) and Charles H. Kuck (Kuck Baxter Immigration).

Background: On January 8, 2021, the Trump administration published a regulation as “final” to end the H-1B visa lottery and replace it with a system that awards H-1B petitions by highest to lowest salary. U.S. Citizenship and Immigration Services (USCIS) uses the lottery when companies file more H-1B applications than the annual limit of 85,000 (65,000 plus a 20,000-exemption for advance degree holders from U.S. universities). In 2021, USCIS received more than 300,000 H-1B registrations for FY 2022.MORE FROMFORBES ADVISORBest Travel Insurance CompaniesByAmy DaniseEditorBest Covid-19 Travel Insurance PlansByAmy DaniseEditor

H-1B petitions are essential because they typically represent the only practical way foreign nationals, including international students, can work long-term in the United States.

The H-1B rule would be bad news for international students. “The National Foundation for American Policy (NFAP) found that an international student may be 54% more likely to get an H-1B petition under the current H-1B lottery system than under the Trump administration’s regulation that would end the H-1B lottery,” according to an NFAP analysis of cases of recent international students and filings for H-1B petitions. “The data demonstrate the new regulation would have a significant negative effect on the ability of international students to gain an H-1B petition.”

In its September 20, 2021, motion for summary judgment in Humane Society of NY, et al. v. Alejandro Mayorkas, et al., plaintiffs cited NFAP research on the primary reason why the rule would prevent most international students from gaining H-1B status: “Initial registrations for these freshly graduated H-1B workers are generally assigned a Level I wage.” 

In other words, employers would naturally offer individuals with less experience in the U.S. labor market lower salaries (Level 1 under the Department of Labor wage level system) than more experienced professionals. Adopting the rule would lead the United States to establish a system—unlike any of its competitors for talent in other countries—that favors the most senior foreign nationals over young, promising talent, particularly recent graduates of U.S. universities.

Difficulty in gaining H-1B status and permanent residence contributed to an increase in Indian students at Canadian universities from 76,075 to over 172,000 between 2016 and 2018. At the same time, at U.S. universities, Indian graduate students in engineering and computer science fell 25%. The evidence indicates America is losing talent because it is much easier to work after graduation and gain permanent residence in Canada and other countries—and the Trump administration’s H-1B regulation would exacerbate this problem. 

In its complaint (May 17, 2021) and motion for summary judgment, plaintiffs argued the regulation is illegal because Chad Wolf was not properly serving as acting secretary of Homeland Security when the rule was issued. Also, according to the plaintiffs, “This final rule unlawfully makes the H-1B nonimmigrant visa selection process dependent on wage level and unlawfully gives priority for lottery selection to those H-1B applicants who are paid the highest wages.”

In a defendants’ reply in further support of their cross-motion for summary judgment, filed on November 22, 2021, the Biden administration argued, “The final rule was promulgated by an authorized official, the final rule comports with the INA [Immigration and Nationality Act]” and “DHS [Department of Homeland Security] responded sufficiently to the public comments.”

The U.S. Chamber of Commerce Lawsuit: Earlier in the year, the Biden administration lost a different lawsuit over the H-1B rule. In his order on September 15, 2021, issued in Chamber of Commerce v. DHS, Judge Jeffrey S. White agreed with a critical legal argument made by the plaintiffs. 

“Plaintiffs argue the Final Rule must be set aside because Mr. Wolf was not lawfully appointed as Acting Secretary at the time DHS promulgated the rule,” Judge White wrote. “In ILRC, the Court concluded the plaintiffs were likely to succeed on the merits of their claim that Mr. Wolf’s appointment was not lawful. At that time, two other district courts had considered and rejected DHS’s arguments, as had the Government Accountability Office (“GAO”). . . . Since then, a number of other courts also have determined that Mr. McAleenan and Mr. Wolf not acting with lawful authority. . . . Because he was not lawfully appointed, Mr. McAleenan’s subsequent attempts to amend the order of succession and to elevate Mr. Wolf to Acting Secretary also were not valid.”

Judge White ruled against the regulation solely on the DHS appointment issue and did not address other arguments raised by plaintiffs. Paul Hughes of McDermott Will & Emery, representing the plaintiffs (the Chamber of Commerce and others), argued the H-1B rule also violated current law. “First, the Lottery Rule is flatly inconsistent with the text of the Immigration and Nationality Act,” according to the plaintiffs. “The statute provides unambiguously that H-1B visas ‘shall be issued . . . in the order in which petitions are filed for such visas.’ Yet the Rule instead unabashedly institutes ‘ranking and selection based on wage levels,’ such that the relatively highest-paid noncitizens are issued visas first, likely leaving none for those at lower wage levels. Agencies are powerless to thus ‘rewrite clear statutory terms.’”

Department of Justice lawyers representing the Department of Homeland Security filed an unopposed motion for dismissal in the Chamber of Commerce case on November 30, 2021. That action foreshadowed the Biden administration’s willingness to bring the Humane Society case to a close as well.

Now that the litigation on the H-1B rule appears to be finished, one question remains: Will the Biden administration allow the regulation to stay dead, or will it issue a new regulation that critics believe embraces Stephen Miller’s vision of business immigration?

An H-1B visa regulation that would make it less likely international students can work in the United States appears ready to die for good. Critics asked why the Biden administration was defending an immigration rule championed by Trump adviser Stephen Miller. The answer is the Biden administration is no longer defending the rule.

“Our plaintiffs are thrilled with the government’s apparent, yet belated, decision to no longer defend the H-1B Lottery Rule,” said Jesse Bless, director of litigation at the American Immigration Lawyers Association (AILA), in an interview. “While we wish that the government had not waited until we had completed briefing on cross-motions for summary judgment, we are fully committed to settlement negotiations, which will hopefully ensure that our plaintiffs receive all the relief to which they are entitled.” 

The case is Humane Society of NY, et al. v. Alejandro Mayorkas, et al. “Following the completion of briefing in this case, the parties entered into settlement negotiations,” according to an unopposed motion filed in the case on December 6, 2021. “There is now a good-faith reason to believe that the parties will reach an agreement in the near future that will fully resolve this matter. However, the parties need additional time to confer and fully resolve the issues presented. In light of the current state of play, plaintiffs hereby move for a sixty-day extension of time to file the Joint Appendix of the Administrative Record which is due on December 6, 2021. Plaintiffs conferred with opposing counsel and they expressed support for the requested extension. The parties anticipate that sixty days will allow the parties to exhaust the possibility of resolving this case without further involvement of the court and move for a dismissal of this matter.”

Background: On January 8, 2021, the Trump administration published a regulation as “final” to end the H-1B visa lottery and replace it with a system that awards H-1B petitions by highest to lowest salary. U.S. Citizenship and Immigration Services (USCIS) uses the lottery when companies file more H-1B applications than the annual limit of 85,000 (65,000 plus a 20,000-exemption for advance degree holders from U.S. universities). In 2021, USCIS received more than 300,000 H-1B registrations for FY 2022.MORE FROMFORBES ADVISORBest Travel Insurance CompaniesByAmy DaniseEditorBest Covid-19 Travel Insurance PlansByAmy DaniseEditor

H-1B petitions are essential because they typically represent the only practical way foreign nationals, including international students, can work long-term in the United States.

The H-1B rule would be bad news for international students. “The National Foundation for American Policy (NFAP) found that an international student may be 54% more likely to get an H-1B petition under the current H-1B lottery system than under the Trump administration’s regulation that would end the H-1B lottery,” according to an NFAP analysis of cases of recent international students and filings for H-1B petitions. “The data demonstrate the new regulation would have a significant negative effect on the ability of international students to gain an H-1B petition.”

In its September 20, 2021, motion for summary judgment in Humane Society of NY, et al. v. Alejandro Mayorkas, et al., plaintiffs cited NFAP research on the primary reason why the rule would prevent most international students from gaining H-1B status: “Initial registrations for these freshly graduated H-1B workers are generally assigned a Level I wage.” 

In other words, employers would naturally offer individuals with less experience in the U.S. labor market lower salaries (Level 1 under the Department of Labor wage level system) than more experienced professionals. Adopting the rule would lead the United States to establish a system—unlike any of its competitors for talent in other countries—that favors the most senior foreign nationals over young, promising talent, particularly recent graduates of U.S. universities.

Difficulty in gaining H-1B status and permanent residence contributed to an increase in Indian students at Canadian universities from 76,075 to over 172,000 between 2016 and 2018. At the same time, at U.S. universities, Indian graduate students in engineering and computer science fell 25%. The evidence indicates America is losing talent because it is much easier to work after graduation and gain permanent residence in Canada and other countries—and the Trump administration’s H-1B regulation would exacerbate this problem. 

In its complaint (May 17, 2021) and motion for summary judgment, plaintiffs argued the regulation is illegal because Chad Wolf was not properly serving as acting secretary of Homeland Security when the rule was issued. Also, according to the plaintiffs, “This final rule unlawfully makes the H-1B nonimmigrant visa selection process dependent on wage level and unlawfully gives priority for lottery selection to those H-1B applicants who are paid the highest wages.”

In a defendants’ reply in further support of their cross-motion for summary judgment, filed on November 22, 2021, the Biden administration argued, “The final rule was promulgated by an authorized official, the final rule comports with the INA [Immigration and Nationality Act]” and “DHS [Department of Homeland Security] responded sufficiently to the public comments.”

The U.S. Chamber of Commerce Lawsuit: Earlier in the year, the Biden administration lost a different lawsuit over the H-1B rule. In his order on September 15, 2021, issued in Chamber of Commerce v. DHS, Judge Jeffrey S. White agreed with a critical legal argument made by the plaintiffs. 

“Plaintiffs argue the Final Rule must be set aside because Mr. Wolf was not lawfully appointed as Acting Secretary at the time DHS promulgated the rule,” Judge White wrote. “In ILRC, the Court concluded the plaintiffs were likely to succeed on the merits of their claim that Mr. Wolf’s appointment was not lawful. At that time, two other district courts had considered and rejected DHS’s arguments, as had the Government Accountability Office (“GAO”). . . . Since then, a number of other courts also have determined that Mr. McAleenan and Mr. Wolf not acting with lawful authority. . . . Because he was not lawfully appointed, Mr. McAleenan’s subsequent attempts to amend the order of succession and to elevate Mr. Wolf to Acting Secretary also were not valid.”

Judge White ruled against the regulation solely on the DHS appointment issue and did not address other arguments raised by plaintiffs. Paul Hughes of McDermott Will & Emery, representing the plaintiffs (the Chamber of Commerce and others), argued the H-1B rule also violated current law. “First, the Lottery Rule is flatly inconsistent with the text of the Immigration and Nationality Act,” according to the plaintiffs. “The statute provides unambiguously that H-1B visas ‘shall be issued . . . in the order in which petitions are filed for such visas.’ Yet the Rule instead unabashedly institutes ‘ranking and selection based on wage levels,’ such that the relatively highest-paid noncitizens are issued visas first, likely leaving none for those at lower wage levels. Agencies are powerless to thus ‘rewrite clear statutory terms.’”

Department of Justice lawyers representing the Department of Homeland Security filed an unopposed motion for dismissal in the Chamber of Commerce case on November 30, 2021. That action foreshadowed the Biden administration’s willingness to bring the Humane Society case to a close as well.

Now that the litigation on the H-1B rule appears to be finished, one question remains: Will the Biden administration allow the regulation to stay dead, or will it issue a new regulation that critics believe embraces Stephen Miller’s vision of business immigration?

Source: https://e.email.forbes.com/c2/869:5df3a796a806e2781760c8d7:rm202112111300:5e4bc7f55b099ce02faa6b40:1/56c3e6d7?jwtH=eyJ0eXAiOiJKV1QiLCJhbGciOiJIUzI1NiJ9&jwtP=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&jwtS=Q41VLkxtpbyTDTU7aGedDln-Agp94UQVb-c0_tBKuh0