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Federal visa restrictions ruled illegal

Earlier this year, the federal government announced rules that would seriously limit the number of visas issued to skilled workers under its H-1B visa program. On Dec. 1, however, a federal judge in California struck down two federal rules designed to restrict this US immigration law program because the government did not follow transparency procedures.

H-1B program

Each year, the United States issues up to 85,000 visas in fields involving technology, engineering, and medicine. These visas are usually in effect for three years and renewable. Most of these 600,000 visa holders are from India and China.

Restrictions imposed

The restrictions were intended to be part of a larger program to restrict almost all forms of immigration. The federal government first issued an order in June temporarily suspending the H-1B visa program until the end of 2020.

In Oct., the Department of Labor imposed salary requirements on companies which employed H-1B visa holders. The Department of Homeland Security also issued rules limiting specialty occupations. The DHS rules would have imposed limits on offsite firms that employ and contract H-1B visa workers to other businesses and their visas would have been limited to one year.

DHS claimed that issuing this rule was a priority because of pandemic-related job losses. It estimated that up to one-third of H1-B visa applicants in recent years would be rejected under these restrictions.

The DOL wage rules took effect in Oct. The DHS restrictions were to be in effect in early Dec.

Lawsuit filed

The U.S. Chamber of Commerce, the California Institute of Technology and other universities sued in California. They alleged that there was inadequate time or notice for public comment on the changes.

The plaintiffs also claimed that the rules, especially the prevailing wage requirements for visa-holders, would have a serious impact on new hires and end the employment relationship of hundreds of thousands of employees in this country. In one example, an H-1B employee seeking visa renewal received an $80,000 salary which would increase to $208,000 under the new requirements.

Ruling

The federal court judge ruled that the government did not follow the procedures for transparency, public comment and issuing regulations under the Administrative Procedure Act. Good cause was not shown for not complying with these rules, according to the judge.

He also rejected the government’s argument that the rules were a response to the pandemic. The government already expressed its intention of issuing these restrictions before March but waited until Oct until it published the regulations.

An attorney can advise visa holders and business on these cases and their rights under the nation’s immigration laws and changing enforcement. Lawyers can also represent their interests in legal proceedings.

 

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