Court strikes down Trump administration's H-1B rules

Dive Brief:

A federal district court Dec. 1 partially set aside stricter H-1B visa program rules set to take effect on an expedited timeline. It granted partial summary judgment in a lawsuit against the U.S. Departments of Homeland Security (DHS) and Labor (DOL).
The court struck down the rules on procedural grounds. The Trump administration's interim final rules, released in October, significantly increased the compensation required for H-1B holders and created new restrictions based on the academic program of applicants. DHS and DOL in a joint statement said the agencies bypassed traditional rulemaking procedures due to the severe economic needs surrounding the coronavirus pandemic and national unemployment.
The lawsuit was filed by a group that included the U.S. Chamber of Commerce and multiple trade groups and universities. The court ruled that the economic argument did not warrant forgoing notice and comment procedures.

Dive Insight:

Legal experts appear to believe these new regulations are unlikely to ever take effect given the upcoming transition to President-elect Joe Biden's administration, as Richard M. Green, partner & chair of CDF Labor Law's immigration practice group, wrote. Immigration attorneys who spoke with HR Dive at the time also said the new regulations were unlikely to take effect, but that they still had an effect on employers, who needed to come up with potential backup plans for the talent needs filled by H-1B holders.

"I think there is absolutely no question that all of these industries are already, first of all, taking on the fight to prevent this from becoming a reality and yet, at the same time, anticipating that there's some vulnerability," said Liz Espín Stern, a partner at Mayer Brown and head of its global mobility and migration practice.

The Trump administration sought to minimize legal immigration as part of its policy agenda, as a way of protecting American workers. But businesses feel it's been making trouble for employers across a number of industries. The interim final rules were looking to reduce the number of H-1B entrants by about a third, according to agency statements. The program issues around 85,000 H-1Bs per year and approximately 600,000 active holders currently live in the U.S., according to the Associated Press.

In April, a Trump executive order put a temporary hold on entry for H-1B holders and other foreign nationals. In June, a new executive order halted the issuance of new visas for the remainder of the year. And in August the government attempted to redo the fee structure for H-1B applications, but was eventually shut down in court.

Despite the latest attempt's failure, it still rankled U.S. employers and many current residents, according to multiple sources. "The regulation that caused the DOL to revise its entire Prevailing Wage structure has significantly negatively impacted H-1B visas," Alka Bahal, partner and co-chair of the immigration practice group at Fox Rothschild told HR Dive via email. "Primarily for those individuals who are seeking to extend their visas so they can continue to work in the U.S., many who have been here for years."