A Trump administration plan to steer visas heavily used by the tech sector to higher-earning workers is set to renew a legal fight over authority to pick and choose users of the H-1B program.
US Citizenship and Immigration Services released a long-awaited proposal this week to overhaul the annual lottery for the specialty occupation visas, which the administration says have undermined employment of American workers. Instead of a randomized allocation, the rule would give prospective workers stronger odds of winning one of 85,000 visas under a statutory cap based on how they’re assigned to one of four wage bands.
Opponents of the lottery revamp, who say it harms smaller employers and critical fields such as health care, are already mulling the basis for potential lawsuits. And they’ll have legal battles from President Donald Trump’s first administration to draw on.
“There will be folks who are looking deeply at, ‘Is this actually allowed based on the way the original Immigration and Nationality Act was written?’” said Xiao Wang, CEO for Boundless Immigration, a company that helps people and companies pursue visas.
For Chuck Kuck, managing attorney at Baxter Kuck LLP, the answer is straightforward—the statute doesn’t allow such changes to the selection process.
“There is no authority to run a lottery that is weighted towards higher salaries,” he said. “It’s really simple. I don’t know why they think they can get away with this.”
Legal Authority
If the Trump administration thinks the highest-earning workers should have better chances of landing a visa, it could ask Congress to pass legislation, Kuck said. But the program was designed to allow every employer to fill jobs with the best qualified workers, whether they’re AI engineers or rural school teachers, he added.
USCIS runs the annual lottery because demand for H-1B workers far surpasses the annual limit on visas. Employers submitted more than 343,000 eligible registrations earlier this spring for the fiscal year 2026 lottery, two years after hitting more than 750,000 registrations.
The proposal acknowledged that the INA requires H-1B petitions be processed in the order in which they’re received. But it argued that the Homeland Security secretary has discretion to fill gaps in the statute on how to order petitions filed in the same timeframe.
Holland & Knight LLP partner Leon Fresco pointed to competing sections of the 1990 immigration law as the crux of a prospective legal debate, with one section setting rigid specifications for H-1B selections and another giving broad discretion to the executive branch on conditions for immigrants coming to the US temporarily.
“Who wins in a duel like that? Does the catch-all win or does the very detailed statutory framework win?” Fresco said.
The US Supreme Court’s decision ending the Chevron doctrine in Loper Bright Enterprises v. Raimondo means the Trump administration could have a tougher path to defending its take on the statutory requirements, said Emily Neumann, managing partner at Reddy Neumann Brown PC.
“Chevron being gone means there’s going to be less deference given to the agency’s interpretation,” she said.
Previous Lottery Fights
Trump first sought to overhaul the lottery for the visas, which have attracted scorn among conservatives, with a regulation finalized in January 2021. That rule would have almost entirely blocked access for workers in the “Level I” wage band for positions that are relatively lowest paid in their fields, including recent college graduates.
Medical groups, business groups, and nonprofits filed lawsuits to halt the rule, arguing that the approach violated INA requirements that petitions are processed in the order they’re received. Kuck served as counsel for plaintiffs in a challenge led by the Humane Society of New York.
The rule was also arbitrary and capricious, they argued, because it failed to make a reasonable case for using the highest wage levels as a proxy for identifying the “best and brightest” workers.
President Joe Biden’s Department of Homeland Security later defended the regulation in court, arguing H-1Bs have become so popular, petitions are “simultaneous or nearly simultaneous,” and the statute doesn’t bar the agency from deciding how to manage those.
A federal court in Oakland, Calif., set aside the Trump regulation on procedural grounds. The Biden administration ultimately withdrew the rule, and the litigation ended without a decision on the core INA dispute.
Stakeholders Weigh In
The key players and scope of the next legal battle remain to be seen. And even more immediate court battles are expected over the White House’s surprise proclamation hitting new H-1B workers with a $100,000 fee as a condition of entry to the US.
“Right now what we’re doing is building a record for litigation,” said Shev Dalal-Dheini, director of government relations at the American Immigration Lawyers Association.
The group has yet to decide whether it will get involved in litigation, she said, but AILA will outline concerns about the latest Trump proposal during a public comment period ending Oct. 24.
The proposal may face less legal resistance than the version from the first Trump administration because it doesn’t wholly cut off access for workers in the lowest wage level, said Elizabeth Jacobs, director of regulatory affairs and policy at the Center for Immigration Studies, which favors lower levels of immigration to the US and largely backs the lottery overhaul.
Wang, of Boundless, faulted Congress for failing to update the INA for decades, despite abuse in the H-1B program, among other US immigration challenges.
The result, he said, is that immigrants and their employers “are subject to the whims of the courts, subject to the whims of whatever administration and party is in control.”
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