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Judge abolishes Trump-era restrictions on visas for skilled foreign workers

A federal judge on Wednesday permanently abolished Trump-era changes to H-1B visa rules that businesses and universities complained would make it harder to hire and recruit highly skilled foreign workers and students.

The Department of Homeland Security and Department of Labor issued rules in October 2020 that revamped the H-1B visa program. The rules applied to tech industry workers as well as doctors, accountants, professors, scientists and architects.

The Trump administration switched the H-1B visa system from a lottery that selects applicants at random to one that prioritizes higher-wage jobs — ostensibly to deter U.S. companies from replacing American workers with cheaper foreign labor.

Senior U.S. District Judge Jeffery White, a George W. Bush appointee, temporarily blocked the rules in December last year after a coalition of business groups and academic institutions led by the U.S. Chamber of Commerce sued to stop them.

Judge White also last year halted a separate attempt by former President Donald Trump to suspend certain types of non-immigration work visas, finding he lacked authority to make those sweeping changes in a presidential proclamation.

The Chamber of Commerce and its co-plaintiffs argued the rules violated the Immigration and Nationality Act, which states that noncitizens should be issued H-1B visas “in the order in which petitions are filed for such visas.”

A system that ranks and selects visa petitions based on wage levels conflicts with the text of that statute, the plaintiffs contended.

The Chamber also said the rules were arbitrary and capricious because DHS did not adequately respond to its concerns that a wage-based ranking system would force employers to hire late-career, higher-paid foreign workers over highly valued, early-career professionals.

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The plaintiffs said the rules would also make it harder for U.S. universities to attract foreign students if those students are no longer able to get good-paying jobs in the U.S. through the H-1B visa program.

Judge White did not address those claims because he found the rule was invalid for a different reason — because Chad Wolf, acting DHS secretary at the time the rules were issued, had been illegally appointed to the position.

Multiple courts and a congressional watchdog found that Wolf and his predecessor Kevin McAleenan were unlawfully elevated to the positions of acting secretary after former Secretary Kirstjen Nielsen stepped down from her post in April 2019.

Justice Department lawyers defending the H-1B visa rules acknowledged in their cross motion for summary judgment that every district court that evaluated the issue “rejected the government’s position” that McAleenan and Wolf's appointments were valid.

Because the government presented no new facts or legal arguments on that issue, Judge White reached the same conclusion as his U.S. district judge colleagues.

“Because Mr. Wolf was not lawfully appointed as Acting Secretary at the time the Final Rule was approved, the Court concludes the rule must be set aside,” Judge White wrote in an 8-page ruling.

During a hearing last week, plaintiffs’ attorney Paul Hughes III of McDermott Will and Emery urged the judge to also issue findings on the plaintiffs' other claims that the rules were arbitrary and capricious and inconsistent with the Immigration and Nationality Act. Hughes insisted those issues would “bring certainty to this area of how tens of thousands of visas are issued each year.” Without that certainty, the government could try to take similarly "illegal" steps in the future, he said.

“DHS has thrown considerable uncertainty into the metes and bounds of the H-1B program,” he said.

Justice Department lawyer Alexandra Rachel Saslaw said the court should not waste its time addressing those claims because any potential future rule by the agency would almost certainly be different from the ones issued by the Trump administration last year.

“It’s not clear that a ruling by this court would provide any certainty unless the government does exactly the same thing,” Saslaw said.

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Judge White seemingly accepted the government’s position on that issue and declined to address the plaintiffs' other claims against DHS.

The judge granted the plaintiffs’ motion for summary judgment, denied the government’s cross motion for summary judgment and vacated the Trump-era changes to the H-1B visa program.

The U.S. Chamber of Commerce and Department of Homeland Security did not immediately return emails requesting comment Wednesday.

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Chad Wolf, the Senior Official Performing the Duties of the Under Secretary and the Assistant Secretary for Strategy, Policy, Analysis, and Risk, US Department of Homeland Security.

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