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Trump Administration Sued Over New H-1B Rules

Corey Lee Law - NYC Immigration Attorney > C.T.LEE & Associates Blog  > Trump Administration Sued Over New H-1B Rules

Trump Administration Sued Over New H-1B Rules

On October 6th, the U.S. Department of Labor and Department of Homeland Security, without any prior notice, announced rules that hugely impact the H-1B visa. As a result of the Department of Labor’s rule, the prevailing wage (minimum wage paid to H-1B workers) skyrocketed.

On the other hand, the Department of Homeland Security rules that H-1B workers will have to work at occupations that directly relate to their degree of bachelor or higher level. The rule from DHS also limits the period of validity of third-party sites H-1B visas to a maximum of a year, compared to the previous three years.

These rules disqualify many that used to be able to apply to H-1 B’s. At the same time, they also make many companies no longer capable of hiring H-1B workers. It is an unprecedentedly difficult time for H-1B holders and their employers.

Knowing these rules will broadly impact them, many organizations and universities have filed lawsuits against the Trump Administration. If the plaintiffs win, the H-1B criteria will revert to how they were before the new rules. These lawsuits will determine the fate of countless foreign workers and the U.S. economy.

Who Are the Plaintiffs?

ITServe Alliance is the largest association of Information Technology Solutions & Services organizations in the U.S., representing over 1,200 member companies. Before this lawsuit, the ITServe Alliance has sued USCIS over H-1B policies. The lawsuit ended with a victory of the alliance. The alliance is suing the U.S. Department of Labor(DoL) in the current lawsuit. The alliance has filed the lawsuit at the U.S. District Court for the District of New Jersey.

The alliance sues the Department of Labor for failing to comply with the Federal Administrative Procedure Act by drastically raising prevailing wage levels without prior notice. The department also violates the Immigration and Nationality Act, which prohibits employers from discriminating because of factors including national origins.

Aside from the ITServe Alliance, various universities and organizations have also filed lawsuits against the Trump Administration. Stanford University, California Institute of Technology, National Association of Manufacturers, U.S. Chamber of Commerce, and other universities/organizations are suing the U.S. Department of Labor and Department of Homeland Security.Plaintiffs have stated that the Department of Labor rule will impose a total of $20 billion extra spendings on employers of H-1B workers, thereby claiming that the rise in prevailing wages is not to protect American workers but to damage the H-1B program.

Taking a Closer Look at the New Rules

The new rules come from two administrations. The DoL rule skyrockets the prevailing wages immediately after the rule was announced. Prevailing wages of some occupations have risen as much as 40%.

For Instance:

Emilia is an international student. She works in America as an H-1B holder after she graduated from an American university. Her wage is $80,000, which surpasses the former prevailing wage for her occupation, which is $62,760. After the new rules were announced, her wage would have to increase to $208,000 to legally stay in her current position as an H-1B worker.

The purpose of this rule is to discourage employers from hiring international staff to protect the American workforce. The rest of the rules come from the Department of Homeland Security, which rules that H-1B workers can only work at occupations that relate directly to his/her academic degrees.

DHS has also shortened the period of validity of H-1B visas held by workers at third-party sites. The original rules granted terms of three years. This will cost the employees and employers considerable amounts of time and energy since they will have to renew their visas every year.

Why These Organizations are Against the New Rules

The impact on workers made by the new rules are clear, yet many industries will also suffer from these rules. H-1B workers must earn a wage above the prevailing wage, but factors may push employers to hire new staff and offer them higher salaries. If most of these new workers happen to be U.S. citizens, prevailing wages will rise, surpassing some H-1B workers’ wages.

Consequently, employers will have to raise wages for more employers.

This will increase companies’ financial burdens, forcing them to lay off more workers (American or international). As a result, the unemployment rate will rise accordingly, while the economy slumps even more severely. These rules will also make the I.T. industry suffer badly.

In recent years, foreign workers have made indispensable contributions to the U.S. I.T. industries, and an increasing amount of foreign workers are choosing to work in this industry. After the new rules, employers will have to lay off workers due to the unaffordable high prevailing wages. To lower the costs, they will avoid choosing U.S. citizen workers and relocate their operations overseas. This creates an incredibly ironic situation — the number of jobs available to Americans become even less.

Universities are also unhappy with such rules. International students have noticed how unwelcoming the country is to them. In the end, not everyone is lucky enough to find a job that pays $208,000 a year right after they graduate. It is expected to see many international students choosing countries with friendlier policies over the U.S. Many U.S. universities will lose a good portion of their international students, who generally pay more tuition than American students.

To avoid these consequences, many universities and organizations are trying to stop the Department of Labor and the Department of Homeland Security with lawsuits. It is unknown if these rules will remain valid after all relating lawsuits are settled. However, there is no question that they are detrimental to both the U.S. economy and foreign workers.

One of the “secret ingredients” to the U.S. economy’s success has always been talented workers that come from all over the world. Many of them come to the country with hopes of building a future here. The innovations and leadership they bring and their businesses have made immense contributions to the U.S. economy. If the H-1B policies keep tightening as currently, these workers will, for sure, be lost. This creates an even more difficult situation for the economy to recover after the pandemic.







作为原告的联盟:IT服务联盟(IT Serve Alliance)是一个由IT服务领域的上千家公司组成的非营利性贸易协会。这个联盟的来头也不小。在这次诉讼之前,IT服务联盟就已经和移民局为了H-1B在法庭上交过锋,最后以联盟胜诉告终。这次和联盟较量的是美国劳工部。目前,IT服务联盟已经向新泽西州联邦地区法院提起诉讼。


















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