The Department of Homeland Security has published a "Final rule" that withdraws a merit-based H-1B regulation developed by the Trump administration.
The Trump administration felt that leaving it to pure luck which foreign workers will obtain H-1Bs in a given fiscal year is an inherently flawed and unfair process.
In November 2020, Trump's DHS published a notice of proposed rulemaking that proposed to amend the H-1B selection process so USCIS would first select registrations based on the highest Occupational Employment Statistics prevailing wage level that the proffered wage equals or exceeds for the relevant Standard Occupational Classification code and area(s) of intended employment.
On January 8, 2021, DHS published the H-1B Selection Final Rule, an impressive feat to complete the rulemaking process in such a short amount of time.
The notice also sought public comment on the delayed effective date, with the Center writing that December 31 is sufficient time for USCIS to be prepared to implement the rule for the next H-1B cap season in March 2022 and offering support of the substance of the final rule, saying in part, "This simplistic but smart regulatory change is just a better way to distribute cap subject H-1Bs.".
The U.S. Chamber of Commerce challenged the rule in court, exposing the organization as a proponent of the lowest-skilled and -paid H-1Bs. The lawsuit claimed that DHS acting secretary Chad Wolf lacked the authority to sign off on the regulation, a position the Biden administration refuted in court for months.
By capitulating on that issue, the judge ruled in favor of the Chamber, effectively killing the H-1B Selection Final Rule without the Biden administration so much as having to draft a single word of a rescission NPRM. The Biden administration also utilized this new side-door strategy to revoke the Trump administration's public charge final rule which was actually in effect the day Biden was sworn in.
https://cis.org/Law/DHS-Withdraws-Trumps-MeritBased-H1B-Rule
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