Lawsuit challenges Trump administration’s new H-1B visa rules

Team Udayavani, Oct 20, 2020, 2:14 PM IST

Washington: Several individuals and organisations, including the US Chambers of Commerce and the National Association of Manufacturers, have filed a lawsuit against the Trump administration”s recent rules related to the H-1B visa, terming them “arbitrary” and “haphazard” regulations that will undermine high skilled immigration into America.

Early this month, the Trump administration announced new restrictions on H-1B non-immigrant visa programme which it said is aimed at protecting American workers, restoring integrity and to better guarantee that H-1B petitions are approved only for qualified beneficiaries and petitioners, a move which is likely to affect thousands of Indian IT professionals.

The interim final rule announced by the Department of Homeland Security will narrow the definition of “speciality occupation” as Congress intended by closing the overbroad definition that allowed companies to game the system.

It will also require companies to make “real” offers to “real employees,” by closing loopholes and preventing the displacement of the American workers. And finally, the new rules would enhance the department’s ability to enforce compliance through worksite inspections and monitor compliance before, during and after an H1-B petition is approved.

The lawsuit filed by the US Chambers of Commerce, the National Association of Manufacturers (NAM) and several other organisations in the Northern District of Columbia on Monday alleges that “harmful and haphazard rules on H-1B visas” if left in place, would affect hundreds of thousands of American-based workers and disrupt manufacturers’ ability to hire and retain critical high-skilled talent.

“The rules being implemented by the Department of Homeland Security and the Department of Labor undermine high-skilled immigration in the US and a company”s ability to retain and recruit the very best talent,” said US Chamber CEO Thomas J Donohue.

If these rules are allowed to stand, they will devastate companies across various industries, he said.

The H-1B visa is a non-immigrant visa that allows US companies to employ foreign workers in speciality occupations that require theoretical or technical expertise. It is most sought-after among Indian IT professionals.

“We need high-skilled innovators now more than ever, and the administration”s attempt to rush these rules forward without properly considering their impact on thousands of people on the front lines of developing vaccines and treatments and making critical supplies, as well as saving lives in our hospitals, could have devastating consequences at a critical moment in our history,” said NAM senior vice president and general counsel Linda Kelly.

Rewriting laws through a “dark-of-night-style” rulemaking leads to dangerous policy outcomes, and this pair of interim final rules is an illegal attempt to dismantle legal immigration by rendering the H-1B visa programme unworkable for hundreds of thousands of American-based workers who are essential to the recovery and renewal of the industry and the economy, Kelly said.

Seventeen individuals and organisations, including universities and businesses, in their lawsuit, have challenged the US Department of Labour”s recent rule on wages related to H-1B visas.

The lawsuit filed in the US District Court for the District of Columbia on Monday alleged that the poorly-drafted and improperly-issued rule did not comply with the procedural rules for rule-making and is substantively “arbitrary”, incorrect and irrational.

“The increase to the prevailing wages will manifestly not benefit US economic growth or any workers; study after study has shown that H-1B visa holders create American jobs,” said Jesse Bless, director of federal litigation at the American Immigration Lawyers Association (AILA).

The regulation has caused immediate and unnecessary harm in every corner of the economy, including academic institutions, non-profits, hospitals, start-ups and small businesses, he said.

Early this month, the Department of Labour published a rule to appropriately identify wage levels for H-1B holders and other foreign labour programmes. The rule will limit an employer”s ability to replace workers with cheap foreign labour and help ensure wages are not suppressed by the presence of low-cost foreign workers, the White House argued.

Among those who have filed the lawsuit are Purdue University, University of Michigan, University of Denver, Chapman University, Bard College, International Institute of New England, Information Technology Industry Council, Arizona State University, Scripps College, Northern Arizona University, Indiana University, Study Mississippi, Dentists for America, Physicians for American Healthcare and Hodges Bonded Warehouse.

Jeff Joseph, Senior Partner of Joseph and Hall, in a statement alleged that dealing with the Department of Labour often feels like “The Hunger Games”.

“Everyone is required to play the game, but no one knows the rules and the rules are constantly changing. This is not a game. The fact that the rule was made effective without thinking about the destructive impact it would have on industries and the economy illustrates how out of touch this administration is regarding the symbiotic relationship between legal immigration and the economy,” he said.

The days when the federal government blatantly ignores the law in its rule-making are over, said Charles Kuck, managing partner of Kuck Baxter Immigration.