US judge blocks Trump on visas

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A federal judge in California has blocked two regulations proposed by the Trump administration to restrict H-1B visas for foreign high-skilled workers. [Photo/Agencies]

A federal judge in California has blocked two regulations proposed by the Trump administration to restrict H-1B visas for foreign high-skilled workers, which was praised by tech industry and immigrant advocates as "a major win".

The planned restrictions announced in October include reducing the occupations eligible for H-1B visas, slashing the duration from three years to one year and increasing minimum H1-B salaries to as much as $208,000 a year.

The government claimed its goal was to protect American jobs amid the COVID-19 pandemic. The rules issued by the Homeland Security Department was set to go into effect on Dec 7; the other one by the Labor Department had been in effect since October.

The judge set aside both rules on Tuesday after having found no "good cause" for the hurried adoption without public notice and comment.

"The lack of notice and review has been a common theme in these rulings. The courts can readily strike down rules on this basis alone, though some businesses and individuals were impacted by the DOL (Department of Labor) ruling that went into immediate effect," said Julie Pearl, a San Francisco-based legal tech expert, in an email.

"The irony in the Trump administration's claim that these rulings were to protect the economy is that they would have the opposite impact. Artificially requiring an employer to pay an entry-level base salary of $127,000 – when the market rate is $88,000 – simply causes that employer to either look offshore or go without the needed talent," said Pearl. "And it is unfair to the US citizens who are paid the market rate, if the job manages to stay in the US."

Business associations and educational institutions, such as the Bay Area Council and Stanford University, also criticized the new rules as counterproductive.

"This is a major win for our economy and for our ability to recover from the worst downturn in generations," said Jim Wunderman, CEO of the Bay Area Council, in a statement.

"H-1B workers fill an important need in our economy and provide immense benefits not only to the companies they work for but the communities where they live. Many of the leading and fastest-growing technology companies in the Bay Area have been founded by entrepreneurs from other countries who first came here on visas."

Pearl echoed his comments, saying that there is "ample evidence" that the H-1B visa workers create jobs rather than take them away.

"By definition, these are US-based, US-taxpaying jobs. Most employers have learned through the pandemic that they can keep workers abroad at lower cost— without paying the $2,500-plus government H-1B filing fee, plus legal fees. So if they are going to the trouble to hire an H-1B worker, it's because there are typically at least eight US workers who are also needed stateside," she said.

Based on her 20-year experience of running a corporate immigration law firm, Pearl said the average client company had less than 7 percent of the workforce in H-1B visa status. "Since 14 percent of people legally in the US are foreign-born, that number makes sense for employers who don't discriminate based on national origin," she said.

The Trump administration has been cracking down on immigration, including the H-1B visa program, in recent years. In a separate order, President Donald Trump barred all issuance of H-1B visas in June. The order triggered a string of lawsuits filed by a diverse set of parties, including the US Chamber of Commerce, the National Association of Manufacturers, and the National Retail Federation. The ban was lifted in October by the same judge who blocked the two new rules on Tuesday.

"These rules were another rushed attempt by the Trump Administration to restrict legal immigration," said Todd Schulte, president of the immigrant-advocacy group FWD.us, in a statement following Tuesday's ruling.

"If implemented, they would be deeply harmful to both American families and our nation's global competitiveness by imposing obligations completely disconnected from real world labor markets.''