A US judge on Tuesday threw out two rules proposed by the Trump administration to narrow eligibility for H-1B visa aspirants and raise their salaries in an effort to make it tougher for companies, mostly in IT, to use this short-term employment programme to hire foreigner workers instead of local Americans.
US district judge Jeffrey S. White of the Northern District of California ruled that the changes were introduced in a hurry and did not abide by the usual transparency obligations: provide notice and sufficient time for public comments.
The administration had sought to rush it through in October arguing urgency – as a “good cause exception” – in view of the Covid-19 pandemic.
“The court cannot countenance – reluctantly or otherwise – defendants’ reliance on the Covid-19 pandemic to invoke the good-cause exception,” White wrote. “The pandemic’s impact on the economy is the only reason DHS proffered as good cause, and defendants do not dispute that the failure to provide notice and comment was prejudicial.”
The United States issues 85,000 new H-1B visa every year. More than 70% of them go to Indian professionals hired by American companies such as Facebook, Google and Microsoft, and Indian IT services companies such as TCS, Wipro and Infosys.
Many of them tend to stay on and graduate to permanent residency, or Green Cards, and eventually citizenship – such as Alphabet CEO Sundar Pichai, who came to the US to study on an F-1 visa, got hired by McKinsey on H-1B and went on to become a US citizen via the mandatory Green Card.
“This ruling has many companies across various industries breathing a huge sigh of relief today,” said Jon Baselice, director of immigration policy for the US Chamber of Commerce in a statement. “Both of these rules had the potential to be incredibly disruptive to the operations of many businesses.”
Among those breathing easier will be people at Nasscom, which represents Indian IT companies, some of whom have built substantial operations in the US using H-1B visas to bring workers from India.
“These regulations seem to be based on misinformation about the programme and runs counterproductive to their very objective of saving the American economy and jobs,” it had said when the administration announced the new rules in October.
In October, the administration announced two rules. One of them went into effect immediately – it raised salaries for H-1B to match those of Americans workers with similar qualifications, which was intended to deny companies from hiring foreign workers only because they were cheaper.
The second rule was to go into effect after some days. It sought to narrow the eligibility for H-1B aspirants. A basic bachelor’s degree in anything wouldn’t be enough. For instance, a foreigner being hired for a job in computer engineering had to be a computer engineer.
The Trump administration has had the H-1B programme in its crosshairs from the president’s first year in office, when he announced his “Buy American, Hire American” policies.
Critics of the programme that allows two tranches of three-year work permits to principal H-1B visa holders and work authorisation for spouses, have argued that companies have used it to replace American workers with foreigners on lower salaries.
The Trump administration agreed. While it tried to change the system incrementally, it accelerated them and with more far-reaching changes after Covid-19 struck early this year, causing widespread job losses.
Trump suspended the programme and immigration to ensure Americans have the first shot at jobs becoming available as the economy recovered.
