A judge in northern California has struck down the Trump administration’s latest effort to put restrictions on H-1B work visas, making plain his irritation that the case is a virtual repeat of a previous effort that was also struck down.
“The court once again confronts a challenge to the administration’s assertion that the H-1B visa program adversely affects American workers to such a degree that it must take immediate action,” noted federal district judge Jeffrey White in his ruling [PDF], referring to a challenge brought by the US Chamber of Commerce and others against the immigration clampdown.
This time around, the main question is whether the Trump administration was justified in pushing through its changes to the employment visa with immediate effect, and without waiting for public comment. The judge decided categorically that it was not.
“The court must decide whether defendants have demonstrated that the impact of the COVID-19 pandemic on domestic unemployment justified dispensing with the ‘due deliberation’ that normally accompanies rulemaking to make changes to the H-1B visa program that even Defendants acknowledge are significant,” he noted.
Trump H-1B visa crackdown hit with legal double whammy: Tech giants, Chamber of Commerce challenge rulesREAD MORE
“The court concludes they have not," he continued, adding: "Accordingly, the court concludes that plaintiffs are entitled to judgment in their favor," and set aside the government's rules, scrapping them, effectively.
In this version of the government’s efforts to curtail or cut-off the work visas, the administration killed off the long-standing lottery process, and prioritized the most highly paid workers, including adding a salary requirement that was extremely high for some roles: $208,000 a year for some tech workers, in fact.
The justification for the change, and the immediate imposition, was that due to the coronavirus pandemic and high rates of unemployment, there was a “good cause” exception to the normal rules. The judge was having none of it.
“The court cannot countenance – reluctantly or otherwise – defendants' reliance on the COVID-19 pandemic to invoke the good cause exception," he wrote. “The pandemic's impact on the economy is the only reason [the US Department of Homeland Security] proffered as good cause, and defendants do not dispute that the failure to provide notice and comment was prejudicial.”
The new rules were fiercely opposed by the tech industry with no less than 46 companies including Apple, Amazon, Facebook, Google and Microsoft challenging them in court, while the US Chamber of Commerce accused the government of ignoring an injunction against an earlier set of changes.
They argue that the new criteria would “bar many foreign born scientists, engineers, developers of emerging technology, and other highly skilled workers from obtaining an H-1B visa and as a result will make it much more difficult for amici to hire the employees they need to compete in the global economy.”
In his judgment, the judge made heavy use of other legal decisions, often by the Ninth Court of Appeal, to explain his actions. Within them, the judge noted that “the good cause exception to notice and comment is ‘narrowly construed’ and ‘reluctantly countenanced.’ Defendants must ‘overcome a high bar’ to show good cause exists for dispensing with notice and comment.”
He then went into a lengthy discussion of how “good cause” was interpreted over the years before bringing down the hammer. The US Department of Labor’s argument that it could not foresee the potential consequences of the pandemic’s impact on domestic unemployment was “particularly implausible,” he noted.
He then dug into the unemployment rate for jobs typically taken by H-1B workers, and found that it wasn't very high, and lower than the general unemployment rate (just 4.8 per cent in September 2020, in fact) quoted by the Trump administration to justify the emergency measures. “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,” the judge wrote.
He also drilled into the justifications for raising the wage bar, and took apart the government’s position, noting at one point that “the factual basis for its belief that it would receive an increased number of LCAs during a notice and comment period is sparse.” LCAs are “labor condition applications” and must be filed by a company before hiring a H-1B non-immigrant.
The judge closed with a note that “the COVID-19 pandemic has wreaked havoc on the nation’s health, and millions of Americans have been impacted financially by restrictions [which have] been a fiscal calamity for many individuals.”
But he finished up by pointedly quoting a Supreme Court decision about the controversial SB 1070 anti-immigrant law passed in Arizona in 2010. He quoted:
“The 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. The National Government has significant power to regulate immigration. 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.”
Or, put less diplomatically, up yours Trump. ®