The judge said the rules were brought in “without observance of procedure required by law”.

US district court has struck down Trumps new H1B visa rules
Atom H-1B Wednesday, December 02, 2020 - 11:30

The new rules for the H-1B visa that were brought in by the Donald Trump administration have been set aside by a federal judge in San Francisco, USA. The proposed rules called for significantly higher wages and narrower eligibility requirements for someone to be taken under the H-1B visa, a non-immigrant visa widely used by Indians. These proposed rules were put forth at the end of October, after the Trump administration began tightening norms of the program after allegations that they were stealing jobs. 

Judge Jeffrey White said that the Department of Homeland Security said the rules were brought forth because of the pandemic’s impact on the economy and said that the rule was proposed “without observance of procedure required by law”. 

The court said that the contention that these changes were brought in because of job losses does not hold because the rules were brought in only in October. “The COVID-19 pandemic is an event beyond Defendants’ control, yet it was within Defendants’ control to take action earlier than they did,” he said. 

Talking about jobs, the order said the evidence regarding unemployment rates most relevant to H-1B visa applications ‘did not show a “dire” emergency’.

“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,” he said. 

Furthermore, the judge took issue with the rules being passed on an emergency basis bypassing the comment period required, which he said would have made it harder for businesses to get high-skilled foreign persons to be employed and raises the amount they would have to be paid. 

In a statement, the US Chamber of Commerce reportedly said that the ruling has many companies breathing a sigh of relief. “Both of these rules had the potential to be incredibly disruptive to the operations of many businesses,” the statement said.

The new rules had proposed to scrap the lottery system that is currently used to award the visa and grant it to those with higher salaries. It had been proposed that employers would have to pay a wage that was higher than the actual wage level that it pays to all other individuals with similar experience and qualifications or the prevailing wage level. It also proposed to tighten the classification of the experience, skills and education needed for the jobs. 

The rules required companies to make ‘real offers to real employees’, by closing loopholes and preventing the displacement of the American worker. The new rules would also enhance the department's ability to enforce compliance through worksite inspections and monitor compliance before, during, and after an H-1B petition is approved.

The rule on wages went into effect in October, and other rules were to go into effect next Monday. 

The US uses a lottery system to randomly select the 85,000 people who are granted the visa because of the high number of applicants. Of those, 65,000 are open to all while 20,000 are for those with advanced US degrees. Indians are the biggest beneficiaries of the H-1B visas getting about 75% of them, according to the US government.

After the Department of Homeland Security announced that an interim rule narrowing the definition of speciality occupation, the US Chambers of Commerce, the National Association of Manufacturers (NAM) and several other organisations, in October, filed a lawsuit against the federal government claiming the recent H-1B regulations would undermine high skilled immigration into the US.

They said in the lawsuit if these ‘harmful and haphazard rules’ on H-1B visas are left in place, they would affect hundreds of thousands of American-based workers and disrupt manufacturers' ability to hire and retain critical high-skilled talent. 

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