The U.S. District Court for the Northern District of California vacated the DHS Final Rule, “Modification of Registration Requirement for Petitioners Seeking to File Cap-Subject H-1B Petitions” on September 15th, in the case Chamber of Commerce, et al., v. DHS, et al.  This final rule, put forth under the Trump administration on January 8, 2021, would have given H-1B visa preference to those with the highest wage levels.  This would have done away with the lottery system and awarded visas based on wage. 

The Biden administration put the Final Rule on hold, to be enacted December 31, 2021 after the U.S. Chamber of Commerce filed a lawsuit challenging the rule.  Then, American Lawyers Association representing five nonprofits and businesses sued the Biden administration.  The onslaught of legal action paid off, preserving the H-1B cap-subject lottery selection process.

But that’s not all.                           

A central aim of the H-1B visa program is to attract foreign students to the United States for Bachelor’s, Master’s, and Ph.D. programs by offering the opportunity to work in the United States after graduation in specialty occupations.  The H-1B visa is a visa of dual intent, so the graduate can choose to pursue permanent residence or not, and the visa period is three years with the opportunity for extension.  However, these recent graduates are entering the field towards the bottom of the pay scale.  This new rule would have effectively excluded them from visa eligibility.

This new rule would have also effectively excluded professionals such as physicists, medical scientists, microbiologists, and other scientists whose positions fall on the lower end of the spectrum as an industry standard from H-1B visa slots. 

While the goal of this new rule was to sequester jobs for Americans, the reality is that we benefit when we can draw the brightest minds from around the world to US industries, and the US workforce does not have the bandwidth to fill the growing number of positions in expanding H-1B eligible industries.  Foreign students and foreign workers actually create MORE jobs for American workers, and create the synergy that keeps US STEM and other industries competitive in the global arena.  We all dodged a bullet. 

At CCI we are here to help you navigate the changing landscape of visa approval.  As we have seen over the past better part of a decade, USCIS does not need changes in the law to justify adjudication decisions, and not everyone has the means to go to court over an illegal visa rejection.  That’s why we always keep an eye on USCIS approval trends and offer creative solutions to prevent and address approval issues.

For a free review of your case visit  We will respond in 4 hours or less.

Sheila Danzig

Sheila Danzig is the director of CCI  Sheila specializes in overturning RFEs and Denials for work visas.

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