H-1B lottery prioritization rule “unlawful three times over,” challengers argue in court

The U.S. Chamber of Commerce recently filed a brief in its litigation challenging the Department of Homeland Security’s (DHS’) H-1B lottery prioritization rule, calling the rule “unlawful three times over.”

The rule, announced in October 2020, would do away with the random H-1B lottery and use a system that prioritizes individuals with the highest offered salaries. The U.S. Chamber of Commerce, National Association of Manufacturers, Presidents’ Alliance on Higher Education and Immigration and other plaintiffs argued in their recent brief, however, the rule is unlawful because:

• It conflicts with the Immigration and Nationality Act (INA).
• It was issued under Chad Wolf, whom courts have said was not lawfully appointed as Acting Secretary of Homeland Security.
• It is “arbitrary and capricious” because DHS did not adequately respond to certain public comments or properly weigh implicated reliance interests.

“The government cannot resuscitate this fatally flawed and ill-advised rulemaking,” the brief said. “The Court should thus set aside the Lottery Rule.”

The litigation has a complicated procedural history. In December 2020, the judge overseeing the case set aside the Department of Labor’s prevailing wage regulation and the DHS “H-1B strengthening” rule. In June, the court vacated the updated version of the DOL wage rule, which was also challenged in the case. The judge allowed the claims related to the lottery rule to continue.

The lawsuit drew the backing of some of the country’s largest companies, 46 of whom signed an amicus brief last year in support of the litigation.

“The H-1B visa program provides tremendous benefits to the U.S. economy and U.S. workers,” the amicus brief said. “Numerous economic studies demonstrate that the presence in the United States of these high-skilled employees fuels innovation, increases productivity and the size of the U.S. economy, and—most important—creates additional jobs and higher wages for U.S. workers.”

Additional information on the lawsuit, Chamber of Commerce v. U.S. Department of Homeland Security, is available here.

BAL Analysis: The H-1B lottery prioritization rule would have a dramatic effect on the way H-1B visas are allocated, but it remains subject to litigation. A hearing will take place in September, and the plaintiffs have urged the court to rule quickly to provide clarity to companies on what rules will be in place next cap season. BAL will continue to follow the litigation and will update clients as information becomes available.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.

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