On Tuesday, Dec. 1, 2020, a federal judge struck down two of the Trump administration’s H-1B rules aimed at further reducing the number of visas issued to highly-skilled foreign workers.
The changes to the H-1B program announced in October artificially inflated the prevailing wages for H-1B visas and narrowed the definition of ‘specialty occupation’. The Department of Homeland Security (DHS) prioritized H-1B restrictions because of job loss related to coronavirus. DHS estimated that one-third of H-1B applicants in recent years would be denied visas under the new H-1B rules.
The wage rule, proposed by the Department of Labor (DOL), was implemented in October, while the DHS rule for specialty occupation and limited validity of H-1B visas for third-party firms was to take effect Monday, Dec. 7, 2020.
Just days before significant restrictions on H-1B visas went into effect, U.S. District Judge Jeffery White declared that USCIS and DOL regulations failed to follow transparency procedures. The Interim Final Rule was not, in fact, an emergency response to COVID-19 job losses because the Trump administration circulated the idea well before publishing the rule in October.
An Interim Final Rule circumvents the notice and comment process that regulations use to permit stakeholders to weigh in on how a regulation may impact them. Under the Administrative Procedures Act, agencies are required to review and address the comments as part of a detailed process for enacting regulations.
“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.
Not surprisingly, Judge White also shot down a similar Presidential Proclamation that attempted to further restrict the H-1B visa process on the same grounds.
The wage rule prompted
two other lawsuits in New Jersey and Washington D.C., which remain pending on this action (UPDATE: The NJ case also found against the Trump Administration on December 03.). The Trump Administration has used this strategy of rule-making to roguishly impose its will instead of going through the rule-making process. Courts have routinely denied these proclamations and regulations.
The Chamber of Commerce said in a statement that the ruling “has many companies across various industries breathing a huge sigh of relief,” as the H-1B visa changes have “the potential to be incredibly disruptive to the operations of many businesses.”
If you want to read up on this, check out the decision in Chamber of Commerce of the United States of America v. United States Department of Homeland Security (4:20-cv-07331) in the District Court for the Northern District of California.
Great news for H-1B filers, American companies, and recent graduates who want to start a career!
About the author: Jon Velie has practiced Immigration law since 1993. He is CEO of OnlineVisas.com., the intelligent Immigration platform. Jon is an Amazon number one best-selling author of H1B Visa: Application & Approval, is regularly covered by major media and has won a number of international awards. Jon can be contacted at firstname.lastname@example.org or 405-310-4333 office or 405-821-5959 mobile.