Federal Judge in California Overturns H-1B Reforms

By David North on December 2, 2020


A federal judge in California on Tuesday blocked badly needed reforms in the H-1B program, seemingly largely on the grounds that the new rules were rushed through, in violation of the Administrative Procedure Act, according to articles in Law360 and Politico.

The administration, after not making these changes for more than three and a half years, argued that the Covid-19 crisis gave them the opportunity to issue the new regulations without going through the normal comment and review process. U.S. district court judge Jeffrey White, a Bush II appointee, did not buy that argument.

Two different sets of new regulations were involved. Of the two, the one by the U.S. Labor Department was the more significant, and more potentially useful to American workers, as we noted earlier. It called for higher wages for the H-1B workers, usually in the high-tech fields, and usually from India. The wage rates, set by a new formula and much closer to the norm, would have increased the costs to employers and thus — perhaps — encouraged them to offer more jobs to U.S. citizens and green card holders. Predictably, the employers moved quickly to restore the status quo.

DHS had a different set of new regulations, tightening the program's definitions and, in Politico's description, limiting "the types of occupations that H-1B workers could qualify for and how long certain beneficiaries could stay in the U.S. The rule change stated that a position would not qualify 'if attainment of a general degree, without further specialization, is sufficient to qualify for the position.'"

The proposed DHS regulations would also have tended to increase the costs, and decrease the convenience of the program, for employers.

Will the incoming Biden administration, which says it is all in favor of the working man, appeal Judge White's decision? Who knows. If so, it would go to the immigrant-friendly Ninth Circuit.