Judge Strikes Down Trump Admin.’s H-1B Visa Restrictions
Law360 (December 1, 2020, 5:28 PM EST) — A California federal judge on Tuesday struck down the Trump administration’s policies tightening eligibility and raising minimum salaries for foreign employees on high-skilled work visas, finding that the administration hadn’t justified its choice to skip key procedural steps.
U.S. District Judge Jeffrey White, a George W. Bush appointee, found that the unemployment crisis caused by the coronavirus pandemic was not “good cause” for the U.S. Department of Homeland Security and U.S. Department of Labor to flout the proper regulatory procedure when issuing the two policies, which aimed to clamp down on H-1B specialty occupation visas.
The DOL’s salary requirements took effect immediately upon publication in October, while DHS’ new criteria rules were set to take effect in December. The U.S. Chamber of Commerce, top universities and other groups challenged the policies in court.
“Without any consultation with interested parties about the impact on American employers, DHS and DOL made changes to policies on which plaintiffs and their members have relied for years and which are creating uncertainty in their planning and budgeting,” Judge White said. “The court cannot countenance — reluctantly or otherwise — defendants’ reliance on the COVID-19 pandemic to invoke the good cause exception.”
The court’s ruling delivers yet another victory to the Chamber, which also recently successfully challenged President Donald Trump’s proclamation suspending work visas due to the pandemic in Judge White’s courtroom.
The Chamber, joined by other business associations and schools including Stanford University and the California Institute of Technology, had slammed the restrictions on H-1B visas, generally reserved for foreign professionals with college degrees, in a lawsuit as a “coordinated assault on the H-1B visa category.”
They also accused the government of relying on “slapdash economic theory” when setting the wage increases, which raise required wages by as much as 150% in some instances, according to their lawsuit.
A spokesperson for the Chamber said in a statement Tuesday that Judge White’s ruling “has many companies across various industries breathing a huge sigh of relief today.”
“Both of these rules had the potential to be incredibly disruptive to the operations of many businesses,” the spokesperson said.
Judge White’s ruling also marks the latest instance where the Trump administration has been burned by its apparent reluctance to follow regulatory processes established by the Administrative Procedure Act, which requires agencies to consider public comments before enacting policies, unless they can show “good cause” to skip those steps.
Failure to adhere to the APA also sunk the administration’s attempts to add a citizenship question to the 2020 census and to end the Deferred Action for Childhood Arrivals program.
Not only did the administration skip the comment period for the two H-1B rules, but the White House budget office also waived its review of the policies, allowing them to take effect faster.
The administration had claimed that the COVID-19 emergency, which shuttered businesses and raised U.S. unemployment, justified speeding up the process.
While acknowledging that the pandemic “beyond question” qualified as an emergency, Judge White found that the government had not shown that the unemployment crisis merited fast-tracking the policies.
The judge noted that the government has had the policies on the books since Trump’s first year in office and did not release them until October, more than six months after the first closures in the U.S. The government’s claim that it had not foreseen the virus’ effect on domestic employment was also “particularly implausible,” Judge White said in his ruling.
“The COVID-19 pandemic is an event beyond defendants’ control, yet it was within defendants’ control to take action earlier than they did,” he said.
Judge White also found that the government’s “assertion of a dire fiscal emergency falters,” citing data showing that while U.S. unemployment spiked, unemployment rates in the sectors that mostly rely on foreign workers remained relatively low.
Judge White’s decision is the first to rule on the H-1B visa restrictions, but other lawsuits challenging the policies are pending before federal judges in D.C. and New Jersey.
In the D.C. case, U.S. District Judge Emmet Sullivan cancelled oral arguments last month and indicated that his ruling was “forthcoming.”
The federal government declined to comment Tuesday.
The business groups and universities are represented by Paul W. Hughes and William G. Gaede III of McDermott Will & Emery LLP.
The federal government is represented by Carol Federighi, Alexandra R. Saslaw and Laurel H. Lum of the U.S. Department of Justice‘s Civil Division.
The case is Chamber of Commerce of the United State of America et al. v. United States Department of Homeland Security et al., case number 4:20-cv-07331, in the U.S. District Court for the Northern District of California.
–Editing by Aaron Pelc.
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