Trump administration loses third H-1B visa case in December

US visa

But it may continue efforts to curtail foreign workers until Trump leaves office.

The Trump administration has lost an H-1B visa case for the third time in December with a Washington, DC, judge ruling as unlawful a rule inflating required minimum wage for employment-based immigrants.

US.District Judge for the Disrtict of Columbia Emmet C. Sullivan ruled Monday the Department of Labor (DOL) violated the Administrative Procedure Act (APA) when it claimed a “good cause” exception to publish the rule without public comment, Forbes reported.

The American Immigration Lawyers Association (AILA) spearheaded the case filed by Purdue University and some others with Stellar IT joining.

Sullivan ordered DOL “to reissue any prevailing wage determinations issued on or after Oct. 8, 2020 under the wage methodology” of the now unlawful DOL wage rule.

That goes beyond the judges in two other cases recently decided against DOL, Forbes noted.

READ: Trump goes ahead with H-1B, other immigration curbs before exit (December 14, 2020)

On December 1, in the Northern District of California, a federal judge set aside the DOL regulation that would have raised the required salary for H-1B visa holders and employment-based immigrants by 40% to 50%, well above the market wage for comparable US workers.

US District Judge Jeffrey S. White also invalidated a Department of Homeland Security (DHS) rule that would have been effective December 7, 2020.

The DHS regulation narrowed the definition of an H-1B “specialty occupation,” according to company declarations in the case, in a way that makes it nearly impossible for most foreign-born scientists and engineers to qualify for an H-1B visa.

On December 3, 2020, a federal judge in New Jersey granted ITServe Alliance, Dots Technologies and other companies a preliminary injunction to block the Department of Labor from implementing its H-1B wage rule.

Analysts cited by Forbes concluded the rule’s objective was to price out of the US labor market existing H-1B visa holders and international students who graduate from US universities.

Sullivan relied on similar evidence presented in the two earlier decisions and cited employment data in the Northern District of California case that showed the economic impact of the coronavirus pandemic was mostly on service jobs, not in the computer occupations in which most H-1B visa holders work.

Sullivan was unimpressed with the Trump administration’s argument it needed to publish the rule quickly and without public comment to prevent companies from filing labor condition applications for H-1Bs because the wage requirements would rise under the new regulation.

“The Court finds the DOL’s explanation insufficient,” wrote Judge Sullivan. As in the two other cases, the judge found the DOL could not show it was “impracticable” to provide the public an opportunity to comment on the rule.

Even if one were to accept the DOL argument that the national unemployment rate was the correct metric to consider, April 2020 was the height of the coronavirus-related national unemployment rate. The wage rule was not published until Oct. 2020.

Forbes said these three court decisions do not necessarily mean the DOL and DHS H-1B regulations are dead.

“The Department of Labor does not need to start the regulatory process from the beginning by publishing a new Notice of Proposed Rulemaking, a process for which there is not enough time remaining in the current administration,” William Stock of Klasko Immigration Law Partners was cited as saying in an interview.

Forbes also cited Ken Cuccinelli at the Department of Homeland Security as saying up to 200,000 H-1B professionals could lose their jobs under the DHS H-1B regulation.

Many other potential H-1B visa holders, including recent international students, would become too expensive to be employed under the Department of Labor’s rule, it said.

Approximately 75% to 80% of full-time graduate students in computer science and electrical engineering at US universities are international students who would need H-1B status to work long-term in the United States.

Trump administration has tried to prevent as many foreign-born individuals as possible from immigrating to or working in America since it came to power in 2017, Forbes noted.

“Expect these administration’s efforts to continue until the day Donald Trump leaves office,” it said.

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