Amicus Brief Supports Preliminary Injunction on H-1B Rules

November 06, 2020

HR Policy joined an amicus brief supporting a preliminary injunction on interim final rules that make it more challenging for employers to hire H-1B high-skilled workers despite a continuing shortage of the skills they provide.  The brief emphasizes the importance of H-1B workers to the U.S. economy and argues the government failed to demonstrate “good cause” to finalize the rules without prior notice and opportunity to comment.

The interim final rules on H-1B high-skill work visas tighten eligibility standards, raise wage requirements by about 30%, and apply greater scrutiny to employers with H-1B workers at third party work sites.  DHS predicts its rule will affect more than one third of H-1B petitions. 

The government relied on unemployment data to claim that the COVID-caused economic downturn justified releasing the rules without notice or the opportunity to comment.   However, the specific data used was either significantly outdated or inaccurately applied.

“Defendants cannot demonstrate the 'good cause' required to finalize rules without prior notice and comment,” the brief reads “as they did with respect to the DHS and DOL Rules.  They rely on the overall unemployment rate at the onset of the pandemic, but most H-1B employees work in the information technology sector, where the unemployment rate is extremely low, and there is a long-recognized lack of U.S. workers to fill available jobs.” 

Outlook:  Notwithstanding the legal proceedings, the central question is whether a President Biden would undo the Trump administration’s rules.  If they are reversed, the Biden campaign’s immigration plan would seem to suggest that further regulations may be on the way.