A federal judge on Tuesday struck down two Trump administration rules designed to drastically curtail the number of visas issued each year to skilled foreign workers.
The changes applying to the H-1B visa program announced in October include imposing salary requirements on companies employing skilled overseas workers and limits on specialty occupations. Department of Homeland Security officials deemed it a priority because of coronavirus-related job losses and estimated as many as one-third of those who have applied for H-1B’s in recent years would be denied under the new rules.
US District Judge Jeffrey White in California said the government didn’t follow transparency procedures and its contention that the changes were an emergency response to pandemic job losses didn’t hold water because the Trump administration has floated the idea for some time but only published the rules in October.
“The Covid-19 pandemic is an event beyond defendants’ control, yet it was within defendants’ control to take action earlier than they did,” White wrote.
The US issues up to 85,000 H-1B visas each year in sectors including technology, engineering and medicine. Usually, they’re issued for three years and renewable. Most of the nearly 600,000 H-1B visa holders in the US are from India and China.
The H-1B rules announced weeks before the election were part of President Donald Trump’s wider agenda to curb nearly all forms of immigration. In June, he issued an order temporarily suspending the H-1B program until the end of the year.
The US Chamber of Commerce and universities including the California Institute of Technology sued in California, arguing there wasn’t adequate notice or time for the public to comment on the changes. They also said the rules, particularly related to requiring a prevailing wage for visa-holders, would have a drastic impact on new hires and “sever the employment relationship of hundreds of thousands of existing employees in the United States.” The University of Utah cited an example where an H-1B employee seeking renewal was paid an $80,000 salary but would have to be paid $208,000 under the new rule.
{{/usCountry}}The US Chamber of Commerce and universities including the California Institute of Technology sued in California, arguing there wasn’t adequate notice or time for the public to comment on the changes. They also said the rules, particularly related to requiring a prevailing wage for visa-holders, would have a drastic impact on new hires and “sever the employment relationship of hundreds of thousands of existing employees in the United States.” The University of Utah cited an example where an H-1B employee seeking renewal was paid an $80,000 salary but would have to be paid $208,000 under the new rule.
{{/usCountry}}The judge agreed that the federal government didn’t make a case for implementing the rules under the Administrative Procedure Act, which makes agencies accountable to the public by requiring a detailed process for enacting regulations.
“Defendants failed to show there was good cause to dispense with the rational and thoughtful discourse that is provided by the APA’s notice and comment requirements,” White wrote.
The rule on wages, proposed by the Department of Labor, took effect in October, while the Homeland Security rule on occupations and other issues was supposed to take effect Monday. It also would have placed limits on “offsite” firms that employ and contract out H-1B visa holders to other companies; their visas would have been limited to one year at a time.
“This is incredibly important decision to preserve the H-1B program,” said attorney Paul Hughes, who represented the plaintiffs. “This ruling enables those individuals to maintain their jobs and their families in the United States.” The Chamber of Commerce said in a statement that the ruling “has many companies across various industries breathing a huge sigh of relief,” with the visa changes having “the potential to be incredibly disruptive to the operations of many businesses.” Messages left Tuesday for spokespeople with the Labor and Homeland Security departments weren’t immediately returned.
The wage rule has prompted at least two other federal lawsuits in New Jersey and Washington, D.C.