Lawsuits Filed Against Trump Administration’s H-1B Visa Restrictions

21. Oct. 2020

U.S. companies, universities and associations have combined to file two lawsuits against the Trump administration’s new H-1B visa regulations, which was meant to make it virtually impossible for U.S. employers to hire high-skilled foreign nationals or sponsor them for permanent residency.

One suit was filed by the U.S. Chamber of Commerce, the National Association of Manufacturers, the Presidents’ Alliance on Higher Education and Immigration and other organizations and universities that include Stanford, Cornell and the University of Southern California.  This suit was filed with the U.S. District Court for the Northern District of California.

Another suit was filed by Purdue University, the University of Michigan and several other universities and organizations, including the Information Technology Industry Council.  This suit was filed with the U.S. District Court for the District of Columbia.

The suits target numerous points:

  • DHS and DOL lacked cause to put the rules into effect without allowing public comments.
  • National Foundation for American Policy (NFAP) analysis shows that “the U.S. unemployment rate for individuals in computer occupations stood at 3.5% in September 2020, not changed significantly from the 3% unemployment rate in January 2020.
  • The new rules and their aggressive implementation schedules seriously harms the “significant reliance interests” of universities, businesses, research facilities and healthcare providers that have organized themselves around the existing regulations, and of the foreign workers who set up their lives here in reliance on those policies.
  • The OIRA in the OMB erred in making the unexplained decision to waive review (proposed rules that impact the economy of $100 million or more, or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety requires review by OIRA).
  • The salary increases are staggering. For example, the required minimum wage for software developers is about 45% higher.  For computer network architects, the new minimum is about 40% higher. The same pattern is seen across many occupations frequently held by H-1B workers.
  • The new rule requiring that a specialized degree must always be a minimum requirement for an occupation to qualify as specialty occupation is arbitrary and capricious. DOL’s Occupational Outlook Handbook (OOH) is used in determining the minimum requirements of an occupation, but OOH generally only speaks to what qualifications a position ‘usually’ or ‘normally’ requires - not what it always requires - and thus cannot satisfy DHS’s new evidentiary standard.
  • Limiting H-1B approval periods to one-year for those who work at client sites serve no policy purpose and is intended to harm a business model (i.e., IT consulting) when such specialized services are critical to the competitiveness of other American businesses.
  • The rule will drive away international students by making it unlikely they could work in the U.S. after graduating. As a result, the innovation that these students would bring to this country will migrate to other parts of the world. The long-term impact of this regulation will harm American universities and the innovation and technology that makes the U.S. a global leader.
  • The rule will devastate companies across various industries, discourage investment, diminish economic growth and impede job creation in the U.S.

In the coming days and weeks, federal judges in California and the District of Columbia will hear arguments in these two cases with the first key decision being whether to grant an injunction that will provide temporarily relief from the new rule.