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In a huge loss to outgoing President Donald Trump, a US federal judge has quashed rules designed to limit the number of H1B visas issued to skilled foreign workers every year. Higher salaries imposed on companies that rely on skilled overseas workers, announced in October, were thrown out by California District Judge, Jeffrey White.
The US Department of Homeland Security (DHS) described the need for higher salaries as a ‘high priority’ amid the coronavirus pandemic and widespread job losses among American citizens. The DHS estimated that around one-third of people who have applied for US H1B visas recently would have been denied under the proposed new rules.
Giving his ruling, Judge White concluded that the government had failed to follow transparency procedures, while saying that implementing the rules in response to pandemic-related job losses ‘didn’t hold water’ because the Trump administration had proposed the rules prior to the coronavirus outbreak, but only pushed the plans in October.
Take action earlier
Judge White wrote: “The COVID-19 pandemic is an event beyond the defendants’ control, yet it was within defendants’ control to take action earlier than they did.”
Under current US immigration laws, up to 85,000 H1B visas are issued every year across business sectors such as engineering, medicine and technology. H1B visas are initially valid for three years, but can be extended. There’s an estimated 600,000 H1B visa holders in the US, most of which are from China and India.
Prior to his US election loss, Trump announced the proposed H1B visa rules as part of wider plans to further restrict all immigration to the US. In June, Trump ordered a total temporary ban on US work visas, including the H1B visa, scheduled to last until the end of 2020 at least.
Following Trump’s H1B visa proposals, the US Chamber of Commerce and several US universities – including the California Institute of Technology - sued the Trump administration, claiming that no warning was given about the changes and time wasn’t given for public comment.
The Chamber of Commerce and the coalition of universities also argued that the changes, especially a potential salary hike, would have a ‘drastic impact on new hires’, while ‘severing the employment relationship of hundreds of thousands of existing employees in the United States.’
Huge salary hikes
In an example of the potentially huge salary hikes, the University of Utah cited how an H1B employee seeking a visa renewal was paid a salary of $80,000. However, under the new rules, the salary would increase to a staggering $208,000.
Judge White agreed that the federal government failed to make a case for implementing the rules under the Administrative Procedure Act, which makes agencies accountable to the public by requiring a detailed blueprint for enacting regulations.
“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,” Judge White wrote.
The rule on wage hikes, proposed by the Department of Labor (DoL), came into effect in October. Meanwhile, the Homeland Security rule on occupations was set to come in effect on 30 November. The rule changes would have also placed restrictions on offsite firms that hire and contract out H1B visa holders to other companies.
It’s understood that visa validity for these H1B employees would have been limited to 12 months at a time.
Paul Hughes, the attorney representing the US Chamber of Commerce and the coalition of universities, said: “This is an incredibly important decision to preserve the H1B program. This ruling enables those individuals to maintain their jobs and their families in the United States.”
A statement issued by the Chamber of Commerce said: “The ruling has many companies across various industries breathing a huge sigh of relief, with the visa changes having the potential to be incredibly disruptive to the operations of many businesses.”
In addition to the lawsuit filed against the wage ruling in California, it’s understood that further action has been taken in New Jersey and Washington D.C.
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