On December 1, 2020, Northern District of California Judge Jeffrey White granted summary judgement in favor of the plaintiffs, the U.S. Chamber of Commerce, top universities and other groups, in a lawsuit challenging the Trump administration’s attempt to tighten eligibility and significantly raise the minimum salaries for foreign employees on H-1B and employment-based green card programs. These unexpected changes instantly made it extremely difficult for U.S. employers to even consider sponsoring foreign workers’ H-1B/green card petitions in their companies.
In the lawsuit, the plaintiffs brought claims under the Administrative Procedure Act (“APA”) and asked the court to set aside two interim final rules promulgated by the Department of Labor (“DOL”) and by the Department of Homeland Security (“DHS”). In issuing the two policies to wreak havoc upon the H-1B and employment-based green card programs, DHS and DOL bypassed key regulatory processes established by the APA, which requires government agencies to receive and consider public comments before enacting new policies, unless good cause can be shown to bypass such regulatory steps. Furthermore, the White House budget office also waived its review of the policies so as to allow these new policies take immediate effect.
In response to the agencies’ claim that the COVID-19 pandemic, which caused the current unemployment crisis in the U.S., justified their decision to bypass the proper regulatory procedures, Judge White found that, “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.” Judge White further noted, “The Court cannot countenance – reluctantly or otherwise – defendants’ reliance on the COVID-19 pandemic to invoke the good cause exception.” Judge White cited statistical data presented by the plaintiffs, noting that pandemic-related unemployment is concentrated in service occupations, and unemployment in specialty occupations that are occupied by foreign workers remained relatively low.
While acknowledging that the COVID-19 pandemic has wreaked havoc on the nation’s health and the economy, Judge White concluded, citing the U.S. Supreme Court’s ruling in Arizona v. United States, “The history of the United States is in part made of the stories, talents, and lasting contributions of those who crossed oceans and desserts 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.”
Although it is not yet clear when DOL wages will return to the normal wage levels and whether the government will appeal this decision, this decision gives relief to U.S. employers and their foreign employees, who rely heavily on H-1B and/or employment-based green card programs to execute critical U.S. projects.
David Hirson & Partners, LLP will closely monitor all subsequent updates relating to this decision. Please check our social media for updates or contact our office with your questions.
The full copy of the court’s decision can be found here: https://www.courthousenews.com/wp-content/uploads/2020/12/White-H-1B-ruling.pdf