DHS Proposes Rule Eliminating the Current H-1B Cap Lottery System

Last week, pursuant to the Trump Administration’s “Buy American, Hire American” Executive Order, the Department of Homeland Security (DHS) issued a proposed rule that would eliminate the current random selection process for H-1Bs subject to the annual quota (“the cap”). The proposed system will allocate new H-1Bs to the most highly paid workers first. Consequently, workers being offered entry-level wages would have very little chance of being selected. The proposed rule primarily targets consulting companies, which the current administration believes are undercutting U.S. workers by paying their H-1B workers below market rates.

What This Means for Our Clients

We emphasize that the proposed rule is just that – a proposal. It does not have the effect of law. Even if President Trump is reelected, the proposal will likely be enjoined or overturned by a court, which would likely find that the proposal is inconsistent with Immigration and Nationality Act, and exceeds the DHS’ authority under the Administrative Procedures Act.

We will provide more information as it becomes available.