The Biden administration had deferred the effective date of this rule until December 31, 2021 and the same was under examination. In other words, if the rule was accepted by the Biden administration, it would have come into effect for the next H-1B visa selection season, for the fiscal year beginning October 1, 2022.
The ground for setting aside this rule by the US district court, was that Chad Wolf was not lawfully appointed as Acting Secretary (Department of Homeland Security – DHS) at the time that the rule was promulgated by this agency.
At present, H-1B visas are allotted based on a random selection process known as the lottery. The new rules would have made the H-1B visa selection process dependent on wage level and given priority to those foreign nationals who were offered the highest salary for their occupation and geographic area.
Immigration attorneys were of the view that it would have a disastrous impact on small business, start-ups, non-profits, rurally located businesses and other industries that rely on foreign highly skilled workers, but who are not able to compensate workers at the highest wage level. Even newly qualified international students would find it difficult to gain an entry into the US workforce under the H-1B visa route.
However, while Judge Jeffrey S White has set aside this rule, the argument of the plaintiffs that DHS does not have the authority to allocate the H-1B quota according to wage levels or any other criteria was not addressed. It is not known, at this juncture, whether the Biden administration will appeal against this order.