One interesting legal question is whetherthe Trump administration could change the way that H-1B cap-subject petitionsare allocated. Under the current system,if the H-1B cap is reached the USCIS conducts a random lottery of all H-1B cappetitions that are filed during the first week of April.
There is no Congressional authorityfor the H-1B lottery. Onefederal court has said that USCIS’ implementation of an H-1B lottery isreasonable because Congress did not instruct the USCIS what to do if the H-1Bcap when oversubscribed. This case, Walker Macy v. USCIS, was just decidedearlier this spring and is now on appeal.
The Trumpadministration says that it seeks reform to “help ensure that H-1B visasare awarded to the most-skilled or highest-paid petition beneficiaries.” Could the Trump administration attempt H-1Breform by replacing the H-1B lottery with an H-1B prioritization system basedon the “most-skilled or highest-paid petition beneficiaries?”
My read is that it cannot. As noted in the Walker Macy case, “when Congress is silent about a particular agency(or judicial) interpretation for a long period of time after thatinterpretation while repeated amendments have been passed, this demonstrateslegislative acquiescence to the interpretation.” In other words, the fact that the USCIS haslong been using an H-1B lottery is compelling.
The random process of the H-1Blottery is also fundamentally fair since it treats all timely -filed H-1Bpetitions identically. Surprising tosome, Congress has not spoken on the need to prioritize the “most-skilled or highest-paidpetition beneficiaries”. In fact,Congress has set forth a different standard.
An H-1B is appropriate if a USemployer is paying at least the prevailing wage of the occupationalclassification. There is nothing in theCongressional statute that favors employers who pay a greater wage. Therefore, it is dubious whether the Trumpadministration can implement this change to the H-1B lottery withoutCongressional action.