Court Rejects Trump ...

Court Rejects Trump Administration’s Latest H-1B Visa Restrictions

December 4, 2020 | by Todd P. Photopulos

During the past four years, the Trump administration has sought to substantially reduce the availability of the H-1B visa program, a visa used by U.S. employers to sponsor temporary workers in a variety of high skilled, degreed-level positions.  In the weeks leading up to the election, the administration intensified its challenge, issuing new “emergency” regulations calculated to significantly restrict the availability of H-1B visas by significantly raising the prevailing wages for most H-1B occupations, and by restricting the definition of who could qualify for the specialty occupation visa.  Seven months after the start of the pandemic in the U.S., the administration issued these regulations as emergency regulations, thereby bypassing the normal notice and comment period required under the Administrative Procedures Act (APA).  The administration also claimed that the economic emergency caused by the pandemic justified bypassing the APA’s normal 30-day waiting period, allowing the administration to implement the regulations immediately.

This past Tuesday, Dec. 1, however, in a lawsuit filed by the U.S. Chamber of Commerce and other business groups, a California federal judge struck down the Trump administration’s policies aimed at tightening eligibility and raising minimum salary requirements for foreign employees on high-skilled work visas. US Chamber of Commerce v. US Dept. of Homeland Security, et al., No. 4:20-cv-07331-JSW (N.D. CA 2020).  U.S. District Judge Jeffrey White held that the administration had not justified its choice to skip key procedural steps.

Judge White, who was appointed by President George W. Bush, found that the nation’s current unemployment crisis caused by the coronavirus pandemic was not “good cause” for the U.S. Department of Homeland Security (DHS) and the U.S. Department of Labor (DOL) to bypass the usual regulatory procedures when issuing the two policies in question. DHS’s new rules were set to take effect in December, while DOL’s drastic raises to minimum salary requirements took effect immediately upon publication in October. 

The U.S. Chamber of Commerce, major universities and other groups challenged the policies in court, referring to them as a “coordinated assault on the H-1B visa category” and accusing the administration of relying on “slapdash economic theory” when setting the wage increases.

In his ruling, Judge White rejected the administration’s failure to follow regulatory processes established by the APA, which requires agencies to consider public comments before enacting policies, unless they can show “good cause” to not do so.  In addition to skipping the public comment period, the White House budget office also waived its review of the policies so they could take effect faster. The administration cited the ongoing COVID-19 emergency as its reason for bypassing the processes.

While Judge White acknowledged that the pandemic certainly qualified as an emergency, he noted that the court is “not tasked with evaluating the emergent nature of the COVID-19 pandemic . . .  nor is it called upon to consider whether the Rules reflect good public policy.  Rather, the Court must decide whether Defendants [the Dept. of Labor and the Dept. of Homeland Security] have demonstrated that the impact of the COVID-19 pandemic on domestic unemployment justified dispensing with the ‘due deliberation’ that normally accompanies rulemaking to make changes to the H-1B visa program that even Defendants acknowledge are significant.”  Judge White ruled that the DOL and DHS had not carried their burden. 

First, the court found that although the agencies claimed the economic emergency created by the pandemic justified circumventing the procedural processes required under the APA, the DOL and DHS unduly delayed in issuing these rule changes.    

The court also noted that on several occasions dating back to 2017, the administration had publicly stated its intent to increase the minimal prevailing wage for H-1B sponsorship and to raise the bar on establishing a position as a specialty occupation to qualify for the H-1B visa. The court found that these specific policy changes had been on the books since the administration’s first year in office (2017) and were only released in October of 2020, more than six months after the pandemic began shuttering U.S. businesses. Indeed, the court noted that the Trump administration had tried on prior occasions this year to restrict the H-1B program due to the pandemic, and that the court had previously struck those efforts down.  The court found that the administration’s latest attempt fell into the adage, “if at first you don’t succeed, try, try again.”

Next, the court addressed the administration’s specific justification that skyrocketing unemployment necessitated the change.  First, the court found it significant that while the general unemployment rate was quite high at the beginning of the pandemic, those numbers had dropped by September to approximate the unemployment rate during the last recession.  Further, the court observed that while the general unemployment rate was high, the unemployment rate for professional, high-skilled, and computer-related occupations most utilized by the H-1B program was much lower – around 4.8%.  The court also found it significant that the rule change was not temporary in nature, but rather was designed to continue beyond the pandemic.  At the same time, the court was troubled that the rule change was made immediately and without any input by interested U.S. employers who have relied this program for years and could not plan or budget for the significant wage increases adopted overnight. 

The court, therefore, found that the government failed to show “good cause to dispense with the rational and thoughtful discourse that is provided by the APA’s notice and comment requirements.”  Based on this finding, the court set aside the rule changes. 

It is unclear whether the administration will appeal this decision, and it is also unclear how the DOL will treat pending prevailing wage determination requests.  There are additional court challenges to the policies brought by other groups pending before federal judges in D.C. and New Jersey. A ruling on the D.C. challenge is expected soon. While uncertainty remains, this is certainly a step in the right direction for what hopefully will be a clearer and more predictable period of US immigration policy.

If you have questions or concerns regarding how the California ruling and the upcoming D.C. and New Jersey rulings will impact your business, please contact Butler Snow attorney Todd Photopulos.