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IMMIGRATION JANUARY 15, 2021 | The Indian Eye 47

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when an H-1B worker was 20th. The rule is likely to end clients to disclose con- has been suggested in the prise. There is a good ar-
placed with a secondary be politically unpalatable, fidential wage information. preamble to the rule, it gument to make to a court
employer, or in the case even to Democrats who This disconnect be- is not stated in the actual that this interpretation of
of Defensor v. Meissner, disfavor the H-1B visa tween the DHS statement rule, which defines the em- the new rule ought to be
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used to determine whether program, given how over- and the rule’s true breadth ployer in a broader sense held unreasonable under
the position qualified for broad and radical it is, as could render it even more but does not include any Kisor v. Wilkie.
H-1B classification. The well as the deleterious im- vulnerable to the legal definition of “secondary Even though Trump
DOL uses this term in an pact it would have on the challenges that are sure to employer” or the need to will exit on January 20, his
unprecedented way, and American economy and come. For instance, the file an H-1B petition. The attacks on legal immigra-
this new interpretation will U.S. companies who use Supreme Court in Kisor DHS and DOL cannot tion through last minute
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adversely impact the H-1B H-1B workers. v. Wilkie, 139 S.Ct. 2400 now reinterpret the new regulations such as the ones

visa program – if not kill it The DHS circumvent- (2019) recently held that definition of employer to above will take time to chal-
completely. ed the notice and comment government agencies no require multiple H-1B lenge, unravel and rescind.
While this Friday night process in promulgating longer get unbridled def- petitions on behalf of the
Trump rule in the waning this rule, alleging that the erence to interpret their same H-1B worker when

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days of a failed presiden- change in the employer own regulations as they did the new rule does not con- *Kaitlyn Box graduated
cy has been designed to definition would be incon- under a previous holding, tain this requirement, and with a JD from Penn State
kill the India heritage IT sequential. Nothing could Auer v. Robbins, 519 US which has never been the Law in 2020, and works as
industry, it will also hurt be further from the truth 452 (1997). While the need authoritative position of a Law Clerk at Cyrus D.
corporate America, which as the new rule requires for a secondary employ- the agency and has taken Mehta & Partners PLLC.
relies on this IT industry the end client to also file an er to file an H-1B petition stakeholders by unfair sur-
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to keep humming away, H-1B petition. To IT con- _________________________________________________________________________________________________
creating jobs, and thus re- sulting companies, H-1B Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, is the Managing Partner
maining competitive in workers, and third parties of Cyrus D. Mehta & Partners PLLC in New York City. Mr. Mehta is a member of AILA’s Administra-
the global economy. The who use the services of the tive Litigation Task Force; AILA’s EB-5 Committee; former chair of AILA’s Ethics Committee; special
change will also do signif- workers, however, this rule counsel on immigration matters to the Departmental Disciplinary Committee, Appellate Division, First
icant harm to other sec- would be catastrophic. By Department, New York; member of the ABA Commission on Immigration; board member of Volunteers
tors as well that involve implementing an expand- for Legal Services and board member of New York Immigration Coalition. Mr. Mehta is the former chair
third-party placements, ed definition of “employ- of the Board of Trustees of the American Immigration Council and former chair of the Committee on
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Immigration and Nationality Law of the New York City Bar Association. He is a frequent speaker and
including nursing, consult- er”, the DHS and DOL writer on various immigration-related issues, including on ethics, and is also an adjunct professor of law
ing, audit, engineering ser- will force third parties who at Brooklyn Law School, where he teaches a course entitled Immigration and Work. Mr. Mehta received
vices among many others. do not pay an H-1B work- the AILA 2018 Edith Lowenstein Memorial Award for advancing the practice of immigration law and
However, the Biden er’s wage to file LCAs and the AILA 2011 Michael Maggio Memorial Award for his outstanding efforts in providing pro bono repre-
administration may fore- H-1B petitions, interfering sentation in the immigration field. He has also received two AILA Presidential Commendations in 2010
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stall the implementation in contractual obligations and 2016. Mr. Mehta is ranked among the most highly regarded lawyers in North America by Who’s
Who Legal – Corporate Immigration Law 2019 and is also ranked in Chambers USA and Chambers
of this rule after January and perhaps even forcing Global 2019 in immigration law, among other rankings.

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