New H-1B visa rules must be set aside, California court rules


Smiles spread among information-technology professionals when the news started circulating Tuesday on WhatsApp that a California court had held the Trump administration’s tweaking of the H-1B visa rules in violation of the Administrative Procedures Act.

On December 1, Judge Jeffrey White of the US District Court for the Northern District of California issued an order blocking two Interim Final Rules (IFRs) on H-1B regulations proposed by the Departments of Labor and Homeland Security to restrict the ability of U.S. companies to hire foreign-born employees on H-1B visas.

The Department of Homeland Security (DHS) Interim Final Rule was set to go into effect 7th December 2020, but will not as a result of this ruling. The Department of Labor (DOL) Interim Final Rule went into effect 8th October 2020, and is now no longer in effect. This decision effectively enjoins DOL and DHS from further implementing the rules unless an appeals court finds otherwise.

The December 1 hearing was on the lawsuit filed by the US Chamber of Commerce, the National Association of Manufacturers, other trade groups and universities challenging the government’s October 8, 2020 release of rules targeting employment-based immigration and particularly the H-1B program.

Everyone is happy about it and hope that it would be applied across the board,” Amar Varda, president of ITServe Alliance, told indica News.

The Dallas-based ITServe Alliance, Inc is a nonprofit trade organization that has over 1,250 IT companies as members — mainly owned by people of Indian origin.

The Alliance had separately filed a lawsuit in the New Jersey district court in October challenging the sudden H-1B wage hike. The new rules are severely flawed and cause irreparable harm to American employers as well as the overall economy, the Alliance alleged in its lawsuit.

Varda hoped for a positive outcome on their case as well.

In California, Judge White concluded that DHS rule was promulgated “without observance of procedure required by law” and must be set aside.

According to the Judge White, the court’s ruling is immediately effective, though a speedy government appeal could affect implementation of the decision.

However according to immigration law firm Fragomen in California, “It is also unknown what approach DOL may take to the prevailing wage determinations that have been issued since October 8 under the new rule. And regardless of the outcome of an appeal, agencies could take administrative steps to reissue the regulations in the remaining weeks of the Trump administration.”

Responding to the court ruling, Sean Randolph, Senior Director, Bay Area Council Economic Institute said,” Needless to say we’re very pleased with this outcome, which ensures that Silicon valley and businesses will continue to have access to top global talent.”

Jim Wunderman, President and CEO of the Bay Area Council, one of the co-plaintiff in the case stated through the press note, “This is a major win for our economy and for our ability to recover from the worst downturn in generations.”

Wunderman stated, “H-1B workers fill an important need in our economy and provide immense benefits not only to the companies they work for but the communities where they live. Many of the leading and fastest-growing technology companies in the Bay Area have been founded by entrepreneurs from other countries who first came here on visas.”

Closing the door to talent from around the world will drive those skills and the opportunities they create to other countries who are more welcoming. In the end that means fewer US jobs. The Bay Area and America must continue to be a place where anyone around the world can come to pursue their dream or dream job.”




Related posts