Will Trump Stick It To The H-1B As He Walks Out The White House Door?

The answer is a definite maybe. Here is the background. Two Trump agencies, the Department of Labor, which artificially lifted wage requirements as high as 50% above the actual wage data collected by government sources; and the Department of Homeland Security that imposed new restrictions on the H-1B visas, suffered legal defeats in Courts in California and New Jersey because the attempted to implement the laws under the Interim Final Rule procedure.

The courts held the agencies did not meet the standard to bypass the notice and comment period because their rationale of an economic downturn failed when the facts that the tech industry, which comprises 66% of the issued H-1B visas, unemployment rate only increased from 2.5% to 3% during the pandemic.

But, if we know anything, it is that Trump does not accept losing lightly. He could still republish the wage rule as a file rule if it does it by December 20th. That will give it 30-day notice before it goes into effect. If filed after December 20th, it will likely be suspended by then President Biden.

But it may not be so easy. Judge White, who is presiding over the Northern California U.S. Chamber of Commerce case, did not make a final ruling, he tossed the regulations out on the technical issue on summary judgment but kept the substantive issues. Whether the wages are tied to real data, whether a lottery could be based on wage instead of timing of filing and how the former may impact jobs that are not in tech or in less populated areas. There are other rules that could make life hard on foreign students and taking away employment authorization from spouses of H-1B’s on H-4 visa. There are new rules on asylum and harder test for naturalization.

Will the Trump staff put the energy into these mean-spirited laws? If they do it will be difficult and time consuming for the Biden Administration to replace them as they will have to revise them and post them for notice and comment again.