H-1B kills US jobs? No, says lawyer in case against new rules


The Trump administration is “just trying for headlines” on the new H-1B visa rules and it is not true that the H-1B visa is killing American jobs, an attorney representing the ITServe Alliance told indica News in an interview.

The ITServe Alliance is among the many organizations that have sued the Trump administration over the new rules that have wrought chaos in the IT industry, among other sectors, across the United States.

The Interim Final Rule (IFR) led to an increase in “prevailing wages” to hire H-1B employees, which has triggered several cases from major industries and universities.

There is really no evidence that the US economy is losing because of IT jobs and H-1B; it’s quite contrary,” Jonathan Wasden, partner at Wasden Banias, LLC, told indica News

Wasden won a landmark case earlier this year ITServe Alliance against against the United States Citizenship and Immigration Services (USCIS).

In that case, the DC court judge ruled that the Department of Homeland Security (DHS) violated the law by adjudicating H-1 applications based on internally created “memos” rather than following legislative guidelines.

On the new H-1B rules, Wasden questioned law enforcement on the “emergency rule-making.”

It’s an attack on us, there is no emergency,” he said, and added that unemployment is very low now compared historically.

At the same time, as jobs close, unemployment for H-1B workers is still much lower compared to general job losses,” he said.

There is still a shortage of IT positions due to the pandemic and the demand for IT work has increased.”

Asked if the pandemic was an emergency, Wasden agreed. “Yes, the pandemic is an emergency [that has created] unemployment in particular sectors.”

Pointing to the unemployment data, he said that the secretary of Health and Human Services declared a public health emergency stemming from the spread of the coronavirus in February this year.

The general unemployment rate in the United States for all occupations reached 15 percent in April 2020.

However, the unemployment rate for computer occupations during that timeframe was only 2.8 percent.

By September 2020, the general unemployment rate was down to 7.8 percent.

When asked why he thinks the Trump administration is calling the H-1B rule tweaks an emergency pandemic step, Wasden pointed to the November 3 election.

This administration is very much against immigrants and their mindset is suggesting that they wanted something near the election news cycle,” Wasden said.

They are just trying to get headlines.”

If it was an emergency situation and there was a regulatory agenda for a long time, Wasden argued, the administration could have done this in March. Why now, he asked.

They can’t do this. There is no emergency and why only a few weeks before the election?” Wasden said.

By issuing the Interim Final Rule, he said, the DOL was not only circumventing the legislative process of Congress but also their own normal rule-making process.

Instead of allowing employers an opportunity to comment before finalizing the new prevailing wage rule, the DOL had the IFR go into effect immediately after publication on October 8, 2020.

Wasden’s firm has filed for a preliminary injunction on October 19 on behalf of ITServe Alliance. However, if the ruling is made through a preliminary injunction, it would only impact the parties of this case.

So, we are asking the court to block the rule and final regularity,” Wasden said.

Wasden, who has been dealing with immigration-related cases for quite some time said: “Companies across the board, with third-party placement and H-1B hires, I think they all are realizing they cannot support a 50 percent increase in revenue. They are looking at cutting jobs, some are looking [to outsource], setting jobs overseas because they cannot afford [the cost].

Look, you cannot go to the unemployment office and say give me 10 people and we can made them coders overnight,” Wasden said.

The wage compensation is tough, so jobs are already going to Mexico and Canada with the US messing up the H-1B Visa program, he argued.

They [employees in Mexico and Canada] can work in the same time zone and those people who say there won’t be any offshore employment don’t know the basic economy,” he said.

Wasden said that some employees can work offshore, but if people are on a long-term contract and “all of a sudden there’s a 50 percent increase in the cost of your business and you have no corresponding contract, what are the options?”

He also pointed out that network security jobs cannot be done offshore.

The ones at a loss, he said, are tech startups and those who are filing for an extension, such as consulting firms with direct hires.

Wasden believes the new rules would be catastrophic for Silicon Valley startups due to their limited budgets.

They can’t do the offshore like consulting companies,” he said.