Recently a Judge in Northern California struck down another Trump Era regulation that had the possibility to dramatically change the H1B Visa lottery system.
The Trump Administration issued a wide array of new rules that were aimed at the H1B Visa program. The H1B Visa program stands today as the major source of work visas for international high skilled employees. In order, to qualify for an H1B Visa, a foreign national must have a bachelor’s degree along with a U.S. employer. Typically, the H1B visa is used by tech companies to attract skilled workers from overseas.
Over the years, U.S. employers have hired foreign talent and relied upon this visa program to allow those new employees to live and work in the USA. The program permits 65,000 new visas each year and allows an additional 20,000 foreign nationals who hold a Master’s degree from U.S. Universities to be included. Individuals are granted the visa for three years with a max period of six years.
The program has long been hailed as a means for bringing in vital talent specifically for the tech industry but has also been widely criticized for being too narrow, limited by its annual numbers, and flawed for its ability to be abused by large corporations. The program also serves as a steppingstone for foreign students to move from a student visa to a work visa. Foreign students rely on this visa to begin their career in the United States.
The Trump Administration had a particular dislike for the H1B program and began to target the program with new regulations and policy changes. The policy changes eliminated categories that were once considered a major part of the H1B program. The regulations aimed at the spouses of H1B Visa holders have caused a major disruption for the H1B families which to this day are unresolved.
This recent decision eliminated the final rule that the Trump Administration had pending regarding the H1B Visa program. This rule sought to change the H1B lottery such that those with the highest paid jobs would be selected while those with lower salary would be rejected. This rule would have directly harmed new graduates entering the work force because as new grads they have a very little chance to receive a high-end salary. The rule would also contravene the law which indicated that the H1B Visas should be doled out based upon a first come, first served basis.
In the end the Judge ruled the Trump Administration failed to properly appoint the Director of USCIS and thereby had violated the Administrative Procedure Act. This violation made any rule or policy change that he instituted under his direction as invalid. The Judge really did take the easy way out, but the good news is that the Biden Administration did not defend the rule or take any action to institute a similar rule on their own. For now, the H1B program is alive with all its flaws and many issues. We do expect some changes in the future, we will update you when we know more.
Author: Sumeet Lall, Esq.
Editor: Marisa Chavez
There have been so many changes over the years that sometimes it’s hard to keep up with it all. That is particularly true in regard to the U.S/Canadian border. As a Seattleite I recall driving back home and crossing the border with a U.S. identification. I was never asked any questions and never had to present a passport.
One of the most important factors that is highly scrutinized is whether the B1 visitor receives a salary or payment form a US based company/entity while in the US. For instance, professional athletes may enter the US to participate in a tournament or sporting event but are not allowed to receive a salary or income from a US based company/entity, other than the prize money.
The H1b visa has been a solid source for work visas for many years. Many clients graduate from school, work on OPT and then move into the H1b process. For graduates with STEM OPT they have more chances at the lottery – giving them a large advantage for getting selected for the lottery with an employer of their choosing.