Synopsis
U.S. District Judge Jeffrey White found that the unemployment crisis caused by the coronavirus was not ‘good cause’ for the U.S. Department of Homeland Security and U.S. Department of Labor to flout the proper regulatory procedure when issuing the two policies, which aimed to crack down on H-1B specialty occupation visas.
A US court has overturned the last two changes to the H-1B visa programme brought in by the administration of US President Donald Trump that would have significantly restricted the ability of US companies to hire foreign workers.
Judge Jeffrey White of the US District Court of Northern California said that the unemployment crisis caused by the Covid-19 pandemic was not ‘good cause’ for the US Department of Homeland Security (DHS) and US Department of Labor (DOL) to bypass the administrative requirements needed when issuing the two Interim Final Rules.
The rules had been notified without public comments and notice period, violating the Administrative Procedure Act.
Trump had brought in several changes to the H-1B visa programme during his term, with these rules being introduced a month before the Presidential elections in November. The court ruling means that it is unlikely to be implemented.
“Not only did the courts grant summary judgment – which is a high standard to reach – but the decision by Judge White really notes the lack of rational arguments made by the government, which probably makes the possibility of winning any appeal unlikely,” said Nandini Nair, partner at law firm Greenspoon Marder.
The United States issues 85,000 new H-1B visas each year, of which almost 70% are bagged by Indian nationals.
The United States issues 85,000 new H-1B visas each year, of which almost 70% are bagged by Indian nationals.
Under the new rules, the minimum wage levels for H-1B workers were increased by an average of 40%, effectively pricing them out of the market for several high-skill jobs. Further, the DHS had changed the definition of specialty occupation, employee-employer relationship and limited the validity of an H-1B visa for one year, instead of three, for a worker placed at third-party worksites.
It also allowed for increased workplace monitoring to improve compliance. While the wage rule was implemented in October, the DHS rule was to be effective from December.
“This judgement has a very important impact on businesses that were reeling under the huge increases in applicable prevailing wages for H-1B workers. The DoL is expected to soon revert to the old method of determining prevailing wages but the judgement does not specify a timeline for this,” said Poorvi Chothani, managing partner at LawQuest, an immigration law firm.
The case disputing these changes had been filed by the US Chamber of Commerce and other industry associations and universities. Indian IT lobby group Nasscom said that it had submitted comments on behalf of thousands of member companies, objecting to the IFRs on both procedural and substantive grounds.
“We viewed the rule as unjustified and had sought for rescinding the IFRs in its entirety, given the significant harm it would do to American businesses, American workers, and to the United States’ economy as a whole. It clearly was not supported by statute or procedure,” it said in a statement.
Through the Covid-19 pandemic, unemployment in the IT sector has remained at around 3-3.5%, significantly lower than the overall unemployment levels in the country. This has prompted experts to question the need to bring in tighter visa regulations aimed at boosting domestic employment.
