Biden admin face suit over H-1B visa wage rule


Last year, in October, the Trump administration launched the H-1B visa petitions where the applicants would be based on their wage levels, discontinuing the initial ‘H-1B visa lottery’ procedure.

This proposal was highly condemned by various organizations and also various the US immigration attorneys, including many employers too, as the H-1B visa allows small-scale businesses and startups in the US to hire foreign highly skilled workers at non-exorbitant wages.

In fact, the proposal has undergone various lawsuits, from the time it was proposed.

Immigration attorneys and employers, along with H-1B applicants expected the Biden administration to do away with this proposal. On the contrary, the latter has just deferred it until December 31, 2021.

Consequently, five non-profit organizations have filed a lawsuit against the Biden administration in a US District Court of Columbia, challenging the unlawful nature of the H-1B cap selection procedure prioritizing wage levels.

These NGOs are represented by the American Immigration Lawyers Association (AILA) and a few immigration attorneys, viz: Jeff Joseph, Charles Kuck and Greg Siskind.

The lawsuit petition, filed with a US District Court (District of Columbia) states “This final rule unlawfully makes the H-1B 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. This rule will foreclose eligible H-1B workers who are not paid at the highest wage levels, including plaintiffs in this matter.”

“It will have a deleterious impact on small business, start-ups, non-profits, rurally located business and other industries that rely on foreign highly skilled workers, but who are not able to compensate workers at the highest wage level.”

Jesse Bless, Director of Federal Litigation with AILA stated, “…Choosing highly-skilled workers solely on the basis of wages arbitrarily aligns a worker’s pay with value, something wrong and un-American.”

Jeff Joseph, senior partner of Joseph and Hall states that the proposed law is in the favor of large and successful businesses, while Charles Kuck, managing partner of Kuck Baxter Immigration vocalizes that such a selection criterion is both illegal under federal law and unjust by any standard.

Charles Kuck, managing partner of Kuck Baxter Immigration said, “A ‘lottery’ that is more of an auction for skilled work visas is both illegal under federal law and unjust by any standard, as it places individuals who live in more expensive locales against those equally necessary and skilled workers who live in rural and less expensive areas.”

Greg Siskind, founding partner of Siskind Susser PC said, “The H-1B statute was intended to make sure that US workers are not being underpaid, not to create a system where non-profit organizations are never able to recruit vital talent because they can’t compete with the for-profit sector, nor was it intended to kneecap universities and hospitals by making it extremely difficult for graduating students and medical residents to qualify for H-1B visas.”