On October 8, 2020, as this prior post explains, the administration issued new rules raising substantial new barriers to employers that want to petition for residency or for temporary work visas for talented foreign workers. The rules dramatically increase the amount that foreign workers must be paid to far exceed the prevailing wage, and also narrow the definition of “specialty occupation” to exclude whole swaths of historically eligible occupations.
On October 19, 2020, the U.S. Chamber of Commerce, together with the National Association of Manufacturers, other associations and universities, including the Presidents’ Alliance on Higher Education and Immigration, California Institute of Technology, Cornell, Stanford and University of Southern California filed a lawsuit challenging the new rules issued by the Departments of Labor and of Homeland Security.
Another lawsuit was filed on October 16th by Purdue University, joined by other universities, tech companies and associations including the Information Technology Industry Council, challenging the Department of Labor’s rule impacting the H-1B visa program.
Both lawsuits seek to enjoin application of the new rules, which broke with the norm by being issued as interim final rules, taking effect without providing the prior notice and a public comment period required for proposed rules.
The new rules will cause extreme disruption for employers and employees alike, since they apply not only to future, but also to current professional level employees on H-1B visas or whom employers are sponsoring for employment-based permanent residency.
As the complaint in the U.S. Chamber of Commerce lawsuit states,
These rules are extraordinary: If left unchecked, they would sever the employment relationship of hundreds of thousands of existing employees in the United States, and they would virtually foreclose the hiring of new individuals via the H-1B program. They would also gut EB-2 and EB-3 immigrant visas, which provide for employment-based permanent residence in the United States.
The complaint notes that H-1B professional workers
perform crucial services where U.S. labor markets lack capacity, boosting economic output and helping businesses grow. They meet essential needs in underserved communities; more than 10,000 physicians are employed each year via the H-1B program to provide medical services, many in remote areas. H-1B workers are critical members of U.S. higher education institutions, performing ground-breaking new research and educating thousands of American students. All this productivity, in turn, creates net new jobs for the domestic labor market. And H-1B visa holders inject ingenuity, entrepreneurship, and cultural diversity across the United States.
This summary holds true in Maine, where hundreds of H-1B visa holders are serving our communities in hospitals from York to Aroostook counties, working at Maine’s colleges and universities, and at leading innovation employers including IDEXX, JAX, Tyler Technologies, and WEX.
For more information about the extreme changes made by the new rules, the impact they will have, and the lawsuits challenging them, see these analyses in Forbes here, and here.