‘New rules for higher salary, limits on specialty occupations were introduced in a hurry.’
A federal judge has struck down two Trump administration rules designed to drastically curtail the number of H-1B visas issued each year to skilled foreign workers.
The changes announced in October imposed higher salary requirements for foreign workers and limits on specialty occupations ostensibly to encourage hiring of local Americans amid coronavirus-related job losses.
US district judge Jeffrey S. White of the Northern District of California ruled that the changes were introduced in a hurry and did not abide by the usual transparency obligations: provide notice and sufficient time for public comments.
The administration had sought to rush it through in October arguing urgency — as a “good cause exception” — in view of the covid-19 pandemic.
“The court cannot countenance — reluctantly or otherwise — defendants’ reliance on the covid-19 pandemic to invoke the good-cause exception,” White wrote.
READ: Denial of H-1B visas to market research analysts challenged (November 20, 2020)
“The pandemic’s impact on the economy is the only reason DHS (Department of Homeland Security) proffered as good cause, and defendants do not dispute that the failure to provide notice and comment was prejudicial.”
“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 with more than 70% of them going to Indian professionals. Most of the nearly 600,000 H-1B visa holders in the US are from India and China.
“This ruling has many companies across various industries breathing a huge sigh of relief today,” said Jon Baselice, director of immigration policy for the US Chamber of Commerce in a statement. “Both of these rules had the potential to be incredibly disruptive to the operations of many businesses.”
READ: 17 US institutions challenge H-1B visa wage hike (October 20, 2020)
The H-1B rules announced weeks before the election were part of President Donald Trump’s wider agenda to curb 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, AP reported.
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.
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.
RELATED: Trump administration sued over H-1B wage hike (October 17, 2020)
“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 H-1B visa 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 H-1B visa rule has prompted at least two other federal lawsuits in New Jersey and Washington, DC.
New H-1B rule to make it more difficult to hire foreign workers (October 6, 2020)