Feds, Businesses Clash Over Tech Worker Visa Restrictions

(AP Photo/Carolyn Kaster)

OAKLAND, Calif. (CN) — The U.S. Chamber of Commerce clashed with the Trump administration in federal court Monday over new rules tightening visa access to foreign tech workers and other professionals.

Framed as a way to preserve American jobs during the coronavirus, the rules announced Oct. 6 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. 

The U.S. Chamber of Commerce, National Association of Manufacturers, National Retail Federation, and other industry groups sued to block the rule from taking effect. 

Two months ago, the groups successfully challenged President Donald Trump’s executive order suspending certain work visas through the end of the year. U.S. District Judge Jeffrey White enjoined the proclamation in an October ruling that found the Trump overstepped the authority Congress delegated to the president to restrict or suspend foreign entry into the United States.

Just a few days later, the Department of Homeland Security and Department of Labor issued the interim final rules the industry groups believe will “substantially restrict, if not outright eliminate, the H-1B visa category.”

In addition to raising wages, the rules require visa applicants to have a degree in their specific field or “specialty occupation.” They also scrutinize “shadow” hiring arrangements under which third-party employers recruit foreign workers en masse and outsource them out other businesses, usually as IT staff.

The rules drew the immediate ire of business groups that rely on foreign nationals to fill workforce gaps. Patrick Duffy, the tech giant Intel’s director of global labor relations and workforce policy, said in a court filing that the changes demanded by the federal agencies are “practically impossible for a large company to implement overnight.”

The rules would largely affect workers in the tech sector but also apply to doctors, accountants, professors, scientists, and architects. It affects not only new visa applicants, but workers who are already in the country who must renew their status at least once every three years.

In a declaration submitted to the court, the University of Utah’s associate general counsel Katherine Carreau said the wage increases are untenable and would have a disastrous effect on the only academic hospital in the Mountain West.

The rule’s “specialty occupation” standard is especially pernicious, because it will necessitate terminating existing staff. 

“The reason it hired H-1B employees in the first place was because of lack of skilled labor to fill these roles. If the university cannot fill these roles, it will suffer additional harms, including inability to offer sufficient courses to our students; increased wait times for patients to make appointments with health care providers; interference with federally funded research projects; and, at ARUP Laboratories, delaying the ability to provide timely clinical test results to medical professionals and patients, including the results of Covid-19 testing,” Carreau wrote. “And it is substantially likely that the university will not be able to find qualified employees in the market, leaving these important roles unfilled.”

At a hearing Monday, Chamber of Commerce attorney Paul Hughes said the government did not have good cause to forego the public notice and comment period required under the Administrative Procedure Act. 

He also said the agencies could not tie Covid-19 related unemployment to the H-1B visa program. “Is this regulation actually responding the harms the emergency has created? The answer is no,” he said. “If it’s otherwise, if there isn’t a standard that would be to say when there’s an economic calamity you could effectively do anything in the markets.”

Arguing for the government, Alexandra Saslaw said the Trump administration acted out of concern regarding long-term employment.

She said Homeland Security “did look at the information sector and services sector and found significant unemployment in both of those sectors.”

She added that the agencies needed to act quickly so companies couldn’t try to circumvent the “protective qualities” they were seeking, and that the government had good cause to dispense with notice and comment period.

“Why wouldn’t your argument apply to basically any rule?” Judge White asked. “For example, hikes in fees for immigration benefits?”

Saslaw answered, “This is a case where we’re talking about businesses that are going to be more responsive to incentives than other people might be,” she said. “Also, this comes at this critical moment involving the Covid-19 pandemic.”

Hughes said the White House has made its agenda on foreign visas known well before the pandemic took hold, and that Covid-19 has been a pretext to enact policies it has sought for years.

“It’s a very difficult argument for the government to make that they needed to do this in secrecy and they couldn’t tell the public about it and that’s the reason that they forewent notice and comment rule making … when the government didn’t in fact keep the secret,” he said.

“We’re talking about hundreds of thousands of existing employment relationships. If the government is going to be justified in severing those, it’s the sort of thing that the public interest requires at least giving those individuals and their employers some degree of notice so they can make the transition rather than doing it by complete. ambush and overnight,” Hughes said. “That’s not what good cause justifies or allows.”

White took the arguments under submission.

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