Recent H1B Temporary Work Visa Restrictions Reversed by US Federal Courts

In October 2020, the Trump administration, through the Department of Homeland Security (DHS) and the Department of Labor (DOL), announced two major destructive changes to the H1B temporary worker program. 

First, the DHS, among other moves, declared a new and restrictive interpretation of what jobs would qualify for H1B “Specialty Occupations”, made evidence of “Specialty Occupation” from the employer exceedingly difficult, and limited H1B visas to one year instead of the traditional three years.

Second, the Department of Labor, declared an immediate and mandatory increase of 40-50% in minimum salaries for H1B applicants. 

Clearly, the policy was intended to freeze the hiring of H1B applicants.  These changes caused major shock waves through the hi-tech industry as it is extremely dependent on H1B visa holders.  The new restrictions could potentially halt the productivity and growth of this sector of the US economy.  Several large employer groups and affected smaller employer groups united and filed lawsuits in US federal courts. 

On December 1, only six days before the DHS rules would go into effect, the court in Northern District of California ruled that both new rules were illegally implemented and ordered the Dept of Homeland Security and Dept of Labor to reverse course.  The court was not convinced by the government’s arguments that high unemployment caused by the COVID-19 crisis justified the restrictive changes and found no evidence of high unemployment rates in the hi-tech industry.  The court also found that the government had not followed the proper procedural requirements and sufficient public notice which is required before implementing new rules.

As of December 11, 2020, the Department of Homeland Security and Department of Labor have accepted the Court’s decision and have reversed policies, re-instating the previous level of wages and the prior existing regulations regarding H1B eligibility and conditions.  More changes to regulations are likely to come from the government in the following months.

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