The H-1B visa allows US companies to employ graduate level workers in specialty occupations that require theoretical or technical expertise in specialised fields such as IT, finance, accounting, architecture, engineering, mathematics, science, medicine.
“It was within defendants’ control to take action earlier than they did,”
Changes were announced in October that required employers to pay foreign workers on H-1B visas significantly higher wages, which would narrow the scope of the program – something the Trump administration said was necessary to protect US workers who lost their jobs during the pandemic.
However, after a legal challenge by the US Chamber of Commerce and universities, US district judge Jeffrey White in California ruled that the pandemic was not “good cause” for the Department of Homeland Security and the Department of Labour to fail to follow proper regulatory procedures.
The judge also ruled that the Trump administration’s argument that the changes were an emergency response to job losses caused by the pandemic did not hold, as the administration had floated the idea of making them for some time.
“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.
Current immigration law allows for a total of 85,000 new H-1B visas to be made available each government fiscal year.
However, according to a report by Associated Press and US News, Homeland Security officials estimated as many as one-third of those who have applied for H-1B’s in recent years would be denied under the new rules.
The US Chamber of Commerce and universities including the California Institute of Technology mounted a legal challenge, arguing there wasn’t adequate notice or time for the public to comment on the changes.
They also said the rules requiring a prevailing wage for visa-holders would have a drastic impact on new hires and “sever the employment relationship of hundreds of thousands of existing employees in the United States”, according to AP’s report.
The Chamber of Commerce said in a statement that the ruling “has many companies across various industries breathing a huge sigh of relief” and that the visa changes had “the potential to be incredibly disruptive to the operations of many businesses”.
This sense of relief was echoed within the US’ higher education sector.
“We’re very pleased that California’s courts threw out the Trump interim final rules,” Sarah Spreitzer, director, government relations, at The American Council on Education told The PIE News.
“It was obvious that they had done it outside of APA rules because they went to an interim final rule as opposed to putting it out there for comment and engaging with stakeholders.”
H-1B visas are used by top companies in the US to recruit international students, and the changes looked as if they could damage hiring opportunities for skilled graduates according to Spreitzer.
“It was very concerning because one of the rules took effect immediately and the other one was due to take effect on December 7, and because it had to do with wage levels, we were really concerned that this was going to impact university hiring in the next year,” she said.
“We’re still worried about the ‘duration of status’ rule being finalised”
Spreitzer noted that the Trump administration might still appeal the court’s decision – but it is uncertain where it will focus its manpower and time as the date when the Biden administration will take over approaches.
“They’re pushing a lot of regulations out to try and put things in place as they leave the White House. Some of them, I think, are more fully baked,” she said.
“We’re still worried about the ‘duration of status‘ rule being finalised and that went through a notice and comment period.
“But with these H-1B rules, because they were done by interim final rule, it was pretty clear that they hadn’t engaged with stakeholders. We were hopeful that the courts would side with us,” she added.