The rules were announced in October, with the stated goal of protecting jobs for U.S. employees during the COVID-19 pandemic. They reduced the occupations eligible for H-1B visas, slashed their duration from three years to one year in many cases, required employers to offer the jobs first to U.S.-based workers, and substantially increased minimum H1-B salaries — to as much as $208,000 a year for occupations such as software developers, according to one study.
But White said the government had been aware of COVID-19 and unemployment rates for many months and had taken no action until the abrupt issuance of the new rules. He also noted that the Labor Department had suggested limiting the visas in 2017.
“Although both agencies cited … ‘skyrocketing’ and ‘widespread’ unemployment rates as a basis to find ‘immediate’ action was necessary, they did not do so for over six months,” said White, an appointee of President George W. Bush. He said the Labor Department’s argument that it could not have foreseen the pandemic’s impact on unemployment was “particularly implausible.”
In addition, White said, unemployment in the affected industries may not be as severe as it is elsewhere. H-1B recipients must have college degrees, he noted, and in September a government report found only 4.8% unemployment among degree holders.
“The record supports an inference that (the Labor Department) delayed in responding to a problem it has been aware of since 2017,” White said.
The ruling would allow the administration to propose the changes again after pubic notice and comment. As a practical matter, that seems unlikely before Trump’s term ends on Jan. 20.
The ruling was also praised by the immigrant-advocacy group FWD.us.
“These rules were another rushed attempt by the Trump administration to restrict legal immigration,” said the group’s president, Todd Schulte. “If implemented, they would be deeply harmful to both American families and our nation’s global competitiveness.”