In October 2020 we reported that the Department of Homeland Security (DHS) proposed a rule that would change how the annual H-1B lottery is conducted. The proposed rule was finalized on January 8, 2021. The rule would change the H-1B lottery process from a random selection process and replace it with a selection process favoring beneficiaries paid at the highest wage levels. In effect, this would have resulted in the limited H-1B visa numbers going to the “highest bidders” and the largest employers.
This month, the U.S. District Court for the Northern District of California concluded that the January 8, 2021, DHS final rule entitled “Modification of Registration Requirement for Petitioners Seeking to File Cap-Subject H-1B Petitions” must be set aside, because Chad Wolf was not lawfully appointed as Acting DHS Secretary at the time that DHS promulgated the rule.
The court did not address whether the Immigration and Nationality Act (INA) allows DHS to prioritize the selection of H-1B visas based on wages or another factor. (Chamber of Commerce, et al. v. DHS, et al.)