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New H-1B Lottery Changes Vacated by U.S. District Court

The new H-1B lottery rule, which would have drastically changed the current random H-1B lottery system and would have distributed new H-1B visas based on the wage level of the salary offer, has now been vacated by the U.S. District Court for the Northern District of California. As you may recall, earlier this year DHS issued a final rule that was published in the Federal Register on February 8th that delayed the effective date of the H-1B lottery changes until December 31, 2021, which means the new lottery rule would have gone into effect for next year’s H-1B cap season (FY 2023). However, yesterday the federal court Judge in Chamber of Commerce, et al. v. DHS, et al. ruled that the DHS final rule entitled “Modification of Registration Requirement for Petitioners Seeking to File Cap-Subject H-1B Petitions” must be set aside, because Chad Wolf was not lawfully appointed as Acting DHS Secretary at the time that DHS promulgated the rule. Accordingly, the court granted the plaintiffs’ motion for summary judgment and denied DHS’s cross-motion. The federal court did not address whether the INA allows DHS to prioritize the selection of H-1B visas based on wages or another factor.