Federal Judge Disposes Trump Administration’s Recent IFRs restricting the H-1B Work Visa

By: Rachel Horner

The federal courts struck down both of the Trump administration’s restrictive Interim Final Rulings (IFRs) proposed to significantly restrict the number of H-1B visas available to file and approve.  The US Chamber of Commerce filed lawsuits in California against both the Department of Labor and the Department of Homeland Security for their IFRs: “Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States Rule” and “Strengthening of the H-1B Nonimmigrant Visa Classification”, respectively.

The DOL’s proposition, which went into effect in October, targeted the minimum wage for those employed through the H1B work visa. Even at the lowest wage level, the minimum wage would have increased significantly (specifically from the 17^th to the 45^th percentile), a change that would mean positions categorized as wage level 1 must meet or exceed the salary standing as the current minimum for wage level 3 occupations. The proposal faced immediate backlash, having two lawsuits quickly filed – stating that the rushed approval of the rule and the math behind the new wages were incorrect and detrimental to the work visa, garnering little benefit for the American economy, which was the foundational argument for the DOL’s proposal.

The other IFR, proposed by the DHS, called for a restructured, stricter definition of the term “specialty occupation”, changing the requirements that an applicant possess the equivalent of a bachelor’s degree to stating that an applicant must be a specialist in the field which the position requires knowledge of, and a limit on contract work, decreasing a candidate’s stay from three years to only one.  Unlike the DOL’s rule, the DHS’s rule was slated to go into effect in December, but both carried potentially devastating results on big tech companies, foreign nationals, and other industries relying on immigrant-workers.

The DHS and DOL both chose to forego a public commentary period and went straight to publication due to the drastic COVID-19 unemployment surge in the US. However, Northern Californian’s District Judge, Jeffrey S. White, ruled that the agencies’ justifications to do so were unfounded. He stated that the publication of the policies skipped crucial procedural steps to install an IFR, and that the pandemic was not a suitable scapegoat. The cons of both rules notably outweighed their minor pros – as the predicted consequences of the IFRs’ implementation was not worth risking for the marginal effect on the American economy, and the improbability that an H-1B ban could alleviate the US unemployment rate.

It is clear that, had these policies remained intact, there would be a high risk of stifling access to labor for several industries in the US, leaving employers to recruit and train possibly unqualified replacements, a process which could take months and cause financial damage to a company. For now, the work visa process remains as is.