Litigation

New H-1B rule favoring high-wage workers 'kneecaps' nonprofits - lawsuit

5 minute read

A citizenship candidate holds a flag during the U.S. Citizenship and Immigration Services (USCIS) naturalization ceremony at Rockefeller Plaza in New York City, U.S., September 17, 2019. REUTERS/Shannon Stapleton

  • Nonprofits can't compete with private companies for high-skilled foreign labor
  • Rule invalid because acting DHS director Chad Wolf not properly appointed, says complaint

(Reuters) - A coalition of trade groups and nonprofits have filed a challenge to a Trump-era U.S. Citizenship and Immigration Services rule that would replace the decades-old random lottery for awarding H-1B work visas with a system favoring higher-paid workers.

The groups, including the Humane Society of New York and Dentists for America, said in a complaint filed in Washington D.C. federal court on Monday that the January rule arbitrarily favors workers in more expensive urban areas and makes it difficult for nonprofits to compete with private companies for high-skilled foreign labor.

The plaintiffs also said the rule was invalid because it was issued by former acting homeland security director Chad Wolf, who was not properly appointed to the role. Federal judges in several cases challenging other Trump-era rules have agreed that Wolf was not appointed according to the proper order of succession.

The Biden administration in February pushed back the rule's March effective date to December, saying USCIS needed more time to develop, test and implement the changes required by the rule.

USCIS, a part of the U.S. Department of Homeland Security, did not immediately respond to a request for comment.

The plaintiffs, which also includes Physicians for American Healthcare Access and the Information Technology Industry Council, are represented by the American Immigration Lawyers Association, Joseph & Hall, Kuck Baxter Immigration and Siskind Susser.

Greg Siskind of Siskind Susser said the H-1B program was designed to ensure that U.S. workers are not underpaid, but not to "kneecap" recruiting efforts by nonprofits, universities and hospitals that cannot pay as much as private companies.

"This rule may have sounded good to the people who came up with the idea, but it will cause disastrous collateral damage," Siskind said.

The number of H-1B visas that can be issued each year is capped at 65,000, with an additional 20,000 visas for workers with advanced degrees. The existing lottery system is used when the number of visa applications exceeds those caps.

USCIS in adopting the January rule said the H-1B program has been exploited and abused by employers seeking to fill lower-wage, entry-level positions and reduce overall business costs. And the lottery system makes it difficult for businesses to plan their hiring and attract the best international talent, the agency said.

The rule garnered support from some left-leaning advocacy groups that had otherwise opposed the Trump administration's immigration policies. They said the rule would protect U.S. workers and reduce the number of H-1B holders who are underpaid, while maintaining the overall number of visas that are issued.

But many business groups have opposed the wage-based approach, saying it would deprive companies in a range of industries and in lower-cost areas of the ability to meet their workforce needs.

The plaintiffs echoed those claims in Monday's lawsuit, saying that prioritizing wage levels improperly equates salary with value. The USCIS rule also makes H-1B eligibility dependent on a single factor rather than the multifaceted approach required by federal law, they said.

The complaint claims the rule is arbitrary and capricious in violation of the Administrative Procedure Act and should be struck down.

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