Illegal Border Crossings Today:

Federal District Judge Blocks New H-1B Reforms

Judge with a gavel

FAIR Take | December 2020

A federal district judge in California blocked a proposed rule tightening and reforming the controversial H-1B skilled nonimmigrant guestworker program, once again dealing a legal blow to the Trump Administration’s attempts to defend American workers.

The Trump Administration issued new rulemaking in October that would close a number of well-known loopholes in the H-1B program. It establishes with greater clarity the definition of a “specialty worker” in the context of H-1B hiring, would alter the prevailing wage levels to ensure they match American salaries, and would give the Department of Homeland Security (DHS) greater leeway in performing worksite enforcement.

FAIR supported all of these developments, with FAIR President Dan Stein remarking at the time that “FAIR, and millions of American workers who are in crisis due to the COVID-19 pandemic, applaud the changes being implemented by Labor Secretary Eugene Scalia and Acting Homeland Security Secretary Chad Wolf.”

Almost immediately upon its announcement, Big Tech and corporate lobbyists attacked the proposal. The U.S. Chamber of Commerce and other business groups sued the Trump Administration, claiming that it would unduly harm businesses that employ foreign guestworkers.

As has become normal in the Trump era, the federal judge did not even address the merits of the complainants, but rather struck down the proposal on the basis of the Administrative Procedure Act (APA), which governs the federal rulemaking and executive action process. In June 2020, the Supreme Court similarly cited the administration’s failure to follow the APA when it blocked President Trump from winding down the constitutionally-dubious Deferred Action for Childhood Arrivals (DACA) program.

The case, U.S. Chamber of Commerce v. DHS, is a tremendous setback for the administration and for advocates of H-1B reform. Once again, under the guise of mere procedural issues, Big Tech and powerful business lobbyists paused real immigration reform from taking place. It is likely that the Trump Administration will continue to litigate this case through the court system, appealing now to the circuit court system.