Judge abolishes Trump-era restrictions on H-1B visas

US Chamber applauds ruling ending curbs on hiring and recruiting highly skilled foreign workers and students

A federal judge has permanently abolished Trump-era changes to H-1B visa rules making it harder for American businesses to hire and recruit highly skilled foreign workers and students.

In October 2020, the Trump administration switched the H-1B visa system from a lottery that selects applicants at random to one that prioritizes higher-wage jobs

Ostensibly made to deter US companies from replacing American workers with cheaper foreign labor, the new rules applied to tech industry workers as well as doctors, accountants, professors, scientists and architects.

US District Judge Jeffrey S. White for the Northern District of California, Oakland Division Wednesday granted the US Chamber of Commerce’s motion for summary judgment in the Chamber’s lawsuit challenging the regulation.

Read: Those hit by Trump ban may reapply for H-1B, other work visas (April 2, 2021)

The new process would have allocated the annual cap according to the Department of Labor’s Occupational Employment Statistics (OES) four-level wage structure.

It would have given top priority in the H-1B selection process to foreign nationals whose offered salary fell in the highest wage level for their occupation and geographic area.

White invalidated the regulation on the grounds that then-Acting DHS Secretary Chad Wolf was not lawfully serving in his role at the time the agency promulgated the cap selection regulation.

He did not address the plaintiffs’ argument that the Department of Homeland Security (DHS) does not have the authority to allocate the H-1B quota according to wage level or other criteria.

The US Chamber of Commerce applauded the ruling with its Vice President of Immigration Policy Jon Baselice calling it a “major victory for American businesses and our economy.”

“This is a major victory for American businesses and our economy. If implemented, the H-1B lottery rule would have denied many companies access to the talent they need to expand their operations and create American jobs,” he stated.

“Given the significant difficulties that employers face in meeting their workforce needs today, many businesses are breathing a sigh of relief in response to this ruling.”

The H-1B cap allocation regulation was a priority of the Trump Administration and was originally set to take effect on March 9, 2021. DHS delayed the effective date of the regulation to Dec. 31, 2021, in response to a Biden Administration regulatory freeze.

It is not yet known whether the Administration will appeal Judge White’s decision.  Unless the decision is overturned on appeal, it is likely that the H-1B cap lottery will be in place for the FY 2023 cap season, which begins in early 2022.

White, a George W. Bush appointee, temporarily blocked the rules in December last year after a coalition of business groups and academic institutions led by the US Chamber of Commerce sued to stop them, Court House News reported.

White also last year halted a separate attempt by former President Donald Trump to suspend certain types of non-immigration work visas, finding he lacked authority to make those sweeping changes in a presidential proclamation.

The Chamber of Commerce and its co-plaintiffs argued the rules violated the Immigration and Nationality Act, which states that non-citizens should be issued H-1B visas “in the order in which petitions are filed for such visas.”

A system that ranks and selects visa petitions based on wage levels conflicts with the text of that statute, the plaintiffs contended.

Read: Lawsuit challenges costly H-1B visa policy (August 17, 2021)

The Chamber also said the rules were arbitrary and capricious because DHS did not adequately respond to its concerns that a wage-based ranking system would force employers to hire late-career, higher-paid foreign workers over highly valued, early-career professionals.

The plaintiffs said the rules would also make it harder for US universities to attract foreign students if those students are no longer able to get good-paying jobs in the US through the H-1B visa program.

Between 2017 and 2021, Trump administration officials increased H-1B denial rates by issuing memos and policies that judges determined to be unlawful, according to Forbes.

Once those policies ended, H-1B denial rates returned to pre-Trump levels, it said citing a National Foundation for American Policy analysis.

Currently, the most significant H-1B restriction is the same one in place before Donald Trump took office—the 85,000 annual limit on new H-1B visas, over 70 percent of which go to Indians.

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