Federal Court Vacates Proposed Trump Administration Rules That Sought to Restrict H-1B Visas
December 07, 2020

A U.S. District Court judge in California last week struck down new departments of Labor (DOL) and Homeland Security (DHS) interim final rules that would have restricted the H-1B visa program for highly skilled workers and drastically increased the wage levels required for hiring H-1B employees.

ACE submitted an amicus brief in the case in October, along with a similar case filed in the District of Columbia.

Taken together, the two rules would have substantially restricted the H-1B visa program (read our comments on the DHS rule here, and CUPA-HR’s comments on the DOL rule here). The DOL rule would have made it prohibitively expensive, in many cases, for employers to hire workers with H-1B visas. The DHS rule sought to limit the categories of workers who qualify for H-1B visas, reducing the number of H-1B positions by at least one-third.

As The Associated Press reported, Judge Jeffrey White said in his ruling that the government “didn't follow transparency procedures and its contention that the changes were an emergency response to pandemic job losses didn’t hold water because the Trump administration has floated the idea for some time but only published the rules in October.”

The decision effectively vacates both rules, although White did not explicitly mention a nationwide injunction.

It is unclear right now whether the administration will appeal the ruling.

On a related note, ACE and 20 other higher education groups sent a letter Dec. 2 to DHS asking the agency to withdraw a separate proposed rule regarding a modification of registration requirements for cap-subject H-1B petitions. While colleges and universities are not subject to the cap, it would disadvantage our recent international graduates and entry-level foreign professionals by changing the current H-1B lottery to prioritize H-1Bs at higher wage levels.

The associations have asked the administration to withdraw the rule and allow the current structure to remain in place.​​