OAKLAND (CN) — The Trump administration cannot use the Covid-19 pandemic to justify sudden and sweeping visa restrictions affecting thousands of professionals working in the United States on H-1B visas, a federal judge ruled Tuesday.
The Department of Homeland Security and Department of Labor dispensed with a required notice and public comment period when it issued new constraints on the H-1B visa program without advance notice on Oct. 6, citing the economic crisis caused by the pandemic.
The new rules require U.S. employers to raise wages for highly skilled workers — ostensibly to deter U.S. companies from replacing American workers with cheaper foreign labor. They apply to tech industry workers as well as doctors, accountants, professors, scientists, and architects
The rules also crack down on “shadow” hiring arrangements under which third-party employers massively recruit foreign workers and outsource them to other businesses. Visa applicants must also hold a degree in their specific field or “specialty occupation.”
U.S. District Judge Jeffrey White noted that the Labor Department and Homeland Security unveiled the H-1B visa rules just a week after he enjoined the enforcement of President Donald Trump’s June proclamation suspending certain types of non-immigration work visas through the end of the year.
He said the government’s response “appears to be the embodiment of the adage ‘if at first you don’t succeed, try, try again.’”
He added in a pointed jab at the administration, “Appearances can be deceiving.”
White found the pandemic and resulting economic crisis no excuse for the government to shirk its notice and comment obligations, siding with a coalition of business groups that oppose the rules, including the U.S. Chamber of Commerce, National Association of Manufacturers, and National Retail Federation.
At a hearing in November, the Department of Labor said it was concerned that employers would rush to lock in lower prevailing wages for H-1B workers. White rejected that rationale as an inadequate excuse, especially given that the wage-rate rule had been on the administration’s agenda since 2017 when Trump ordered both the Labor Department and Homeland Security to suggest reforms to the H-1B visa program. He also found it implausible that the Department of Labor could not have foreseen the potential impact of the pandemic on unemployment.
“Even taking into account uncertainty associated with the pandemic, it is not unreasonable to infer that DOL could have extrapolated from that definition that action would be required before October, if unemployment continued to rise,” White wrote. “Finally, it is a matter of public record that between March and October, defendants issued a number proposed rules unrelated to the COVID-19 pandemic, at least one of which expressly requested input on the impact of the COVID-19 pandemic on the proposed rules. From that, it is reasonable to conclude defendants are not entitled to a presumption of urgency.”
He also found evidence of unemployment rates in the H-1B visa category does not reflect a “dire” emergency requiring immediate action.
“The statistics presented regarding pandemic-related unemployment still indicate that unemployment is concentrated in service occupations and that a large number of job vacancies remain in the areas most affected by Rules: computer operations which require high-skilled workers,” White said.
“Accordingly, the court cannot countenance — reluctantly or otherwise — defendants’ reliance on the COVID-19 pandemic to invoke the good cause exception,” he added.
In a statement Tuesday, U.S. Chamber of Commerce immigration policy executive Jon Baselice said White’s order helps alleviate industry worries about what the rules might mean for hundreds of thousands of jobs.
“This ruling has many companies across various industries breathing a huge sigh of relief today,” he said, adding the rules “had the potential to be incredibly disruptive to the operations of many businesses.”