California judge rules against Trump administration’s curbs of H-1B

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A California judge on Dec. 1, 2020, struck down the Trump administration’s new regulations for H-1B skilled workers program that required raising wages of this class of immigrants and reducing their periods of stay and tightening educational requirements for specialized jobs.

Supporters of H-1B called it a victory for the economy, opponents derided the decision as harmful to the American workers.

United States District Judge Jeffrey S. White of the Northern District of California, in the case – US Chamber of Commerce versus Department of Homeland Security, Department of Labor, and Others, issued an order blocking two new H-1B regulations that the Trump Administration wanted to speed through on grounds of COVID-19 unemployment numbers, which would have resulted in restricting the hiring of foreign skilled workers by U.S. companies using the H-1B visa. A vast majority of those hired on H-1B visas are from India,

The Department of Labor Interim Final Rule had already gone into effect back on Oct. 8, 2020, and the Department of Homeland Security Interim Final Rule – would have gone into effect December 7. Both are now redundant and no longer apply to H-1B visas, say attorneys and other experts on immigration and the technology economy.

The U.S. Chamber of Commerce argued that using COVID as reason for rapid deployment of the new regulations had no basis, one, because the Trump administration had been wanting them even before COVID, and two, the administration had not gone through the Administrative Procedure Act, which required that the parties impacted have input in the issue.

The administration’s two regulations required companies to raise the wages for H-1B visa holders who would be applying for renewals. It also changed the skill requirements for hiring foreign nationals in the specialized jobs.

“This was just a mean-spirited attempt by the administration to restrict skilled immigration,” Vivek Wadhwa, a technology entrepreneur and academic, told News India Times. Wadhwa is the Distinguished Fellow & Adjunct Professor at Carnegie Mellon’s School of Engineering in Silicon Valley.

“The H1B visa is abused and needs reform but this was just an attempt to keep foreigners out.  Hopefully, Alejandro Mayorkas, the new DHS chief will look at all this afresh and develop sensible policies that encourage immigration and boost the economy,” Wadhwa added.

Mayorkas is President-elect Joe Biden’s choice for leading the DHS.

Those supporting the new regulations are crying foul maintaining that it would allow Silicon Valley companies to continue hiring foreigners at the cost of American nationals; Those supporting the H-1B program are obviously elated.

The new regulations were a source of immense anxiety for thousands of Indians. And for smaller companies employing foreign workers who would not have been able to afford the higher pay scales, notes Prakash Khatri of Khatri Law, former Ombudsman in the U.S. Citizenship and Immigration Service appointed by President George W. Bush, and currently assisting in resolving complex immigration issues.

Though the Trump administration argued that H-1B was impacting American workers, “Study after study has shown that the positions filled by H-1Bs cannot be filled by the unemployed. And these jobs are not impacted by the COVID unemployment numbers,” Khatri told News India Times.

FWD.us, which describes itself as a bipartisan political organization whose goal is an overhaul of the immigration and criminal justice system, called Judge White’s ruling a victory for the American economy.

“Today’s ruling is great news for Americans, and for the ability of the U.S. to remain the top destination for talented individuals – including international graduates of American universities – who are looking to contribute their skills here and build a stronger economy,” said FWD.us President Todd Schulte in a statement on the organization’s website.

“These rules were another rushed attempt by the Trump Administration to restrict legal immigration. 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,” Schulte added.

Judge White in his ruling on the case in effect concluded that the country had depended on skills of immigrants to grow the economy, and that the Trump administration had not provided enough evidence to support its changes.

“The COVID-19 pandemic has wreaked havoc on the nation’s health, and millions of Americans have been impacted financially by restrictions imposed on businesses, large and small, during the pandemic; the consequences of those restrictions has been a fiscal calamity for many individuals,” Judge White said as a prelude to his ruling.

“However, “[t]he history of the United States is in part made of the stories, talents, and lasting contributions of those who crossed oceans and deserts to come here,” added Judge White who was appointed to his position by Republican President George W. Bush.

Acknowledging that the National Government has significant power to regulate immigration, Judge White however, placed a caveat, saying, “With power comes responsibility, and the sound exercise of national power over immigration depends on the Nation’s meeting its responsibility to base its laws on a political will informed by searching, thoughtful, rational civic discourse.”

Judge White also said, “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.”

Based on those reasons the Judge said, “Defendants (Trump administration) failed to show there was good cause to dispense with the rational and thoughtful discourse that is provided by the APA’s notice and comment requirements.” The APA stands for Administrative Procedure Act.

“Yet again, a federal judge has ruled that the Trump Administration has failed to show good cause in their efforts to slash legal immigration,” said FWD.us President Schulte.

FWD.us takes the position that the “nation’s economic security and growth stems in part from the contributions of hardworking immigrants; we must work to ensure we are a welcoming nation and reject scapegoating people that are a cornerstone of our country’s economic engine.”

Breitbart News indicated the defeat of the new regulations coming into force strengthened the hands of Fortune 500 CEOs “to sideline many American professionals and new graduates.”

John Miano, a lawyer with the Immigration Reform Law Institute, told Breitbart News that the Trump administration could appeal Judge White’s ruling, but may not get an answer by the time President-elect Biden takes over Jan. 20, 2021.

The judge’s decision is a big loss to every U.S. skilled graduate who is stuck in their national labor market flooded with unemployed American graduates and foreign visa workers, Miano is quoted saying by Breitbart.

According to Miano, Judge White’s ruling impacts every college-educated person. “Any college-educated person is now in a job where they can be replaced by foreign workers — or not even get hired. We have basically exported hiring for the tech-industry to third parties. Now, U.S. graduates are going to [online recruiters in] India to apply for jobs in the United States,” Breitbart news reported Miano indicating.

But Khatri differed. “This court ruling will in all probability, stand and this nation and the US taxpayers will benefit from these talented individuals working in the United States and paying taxes and spending the money here rather than working for US companies from their home countries and paying taxes and spending American corporate money in their country. ” he contended.

If the new regulations had come into force during COVID when most of these H-1B employees were working from home, the biggest impact would have been companies here would have sent them back to their own countries, in this case, mainly to India.

“These new regulations would have dramatically impacted the business structure,” Khatri said.

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