Businesses Bring Suit Over New H-1B Visa Rules

August 28, 2020

Industry groups that represent business owners, manufacturers, and retailers brought suit against the Trump administration alleging that the President exceeded his authority when he announced a plan to halt several work visas that allowed hundreds of thousands of high-skilled foreign workers to hold jobs in the U.S.

The suit was filed on July 21 in federal court in San Francisco against the Department of Homeland Security and the State Department, arguing that the announcement to cut off access to employment-based visas was unconstitutional, since it attempted to supersede the powers granted only to Congress.

What is an H-1B Visa?

The declaration put a temporary stop to H-1B visas that allowed specialty workers with specific training and skills to work in the U.S. These visas are requested by businesses in need of highly skilled workers for jobs that require particular expertise. U.S. employers petition the government on behalf of the specific employee for employment that can last up to six years, at which point renewal may be an option.

The suit claims that there are more than half a million foreign workers that currently hold H-1B visas. These visas are granted to workers with expertise in such fields as accounting, architecture, engineering, finance, IT, mathematics, medicine, and science. These visas are usually held by graduate level workers but can be extended to professionals who hold a bachelor’s degree or equivalent.

What Other Employment-Based Visas were Affected?

Other visas that were affected by the freeze include H-2B visas, which are temporary non-immigrant work visas granted to seasonal workers for a limited stay; L-1 visas, which allow managers and executives to be transferred by their employers to intra-company jobs within the U.S.; and J-1 visas, which are granted to students in work or study-exchange programs. J-1 visas are meant for temporary workers ranging from au pairs to visiting doctors.

Additionally, H-4 visas were put on hold as well. These visas apply to the dependents of non-immigrants in the country on work visas. Using H-4 visas, eligible spouses and unmarried children under the age of 21 may accompany employment-based visa holders and legally remain in the U.S. as a non-immigrant for the duration in which the primary visa holder’s work-based stay remains valid.

What Changed Regarding the Trump Administration’s Order?

The order, announced on June 22, refuses petitions from employers looking to bring temporary workers into the U.S., effectively blocking their entry into the country. The declaration suspends the visa program until the end of the year. The administration claims that its authority is based on Section 212(f) of the Immigration and Nationality Act (INA), which relates to presidential powers to halt entry of any alien perceived by the President to be detrimental to the interests of the country.

What is the Basis for the Lawsuit Against the New Rules?

The major argument is that the President exceeded his authority in proclaiming the halt of work visas. The plaintiffs in the case claim that the administration has no power to enforce it. Despite the President’s claim to powers under Section 212(f), the plaintiffs are clear that these powers do not override Congress, which put these immigration rules in place to accommodate the interests of workers, companies, and the economy at large.

In addition to the constitutional argument, the introduction of the case against the halt presents reasoning on practical matters. The plaintiffs argue that excluding these workers from the country’s workforce goes against the interest of businesses that need skilled workers to succeed, as well as the security of the overall economy. Further, the argument is made that hiring targeted foreign workers does not exacerbate unemployment rates among U.S. citizens, as the presence of these visa holders and their positive impact on business contributes to the creation of additional jobs.

U.S. restrictions on hiring skilled and specialty workers greatly benefits other countries that would happily poach impressive and talented workers that provide a competitive edge against the U.S. The business associations behind the lawsuit request that the court rule against the President’s proclamation and give businesses a chance to compete in the labor market for the best employees to help grow their businesses and support the U.S. economy as a whole.

What are the Implications During a Pandemic-Related Unemployment Crisis?

The impacts of the COVID-19 pandemic on unemployment rates are undeniable. As businesses were forced to close in response to the public health emergency, millions of people lost their jobs. Some industries, such as hospitality and tourism, were harshly affected.

However, industries supported by the H-1B visa program were not a major factor in pandemic-related job losses. For example, as unemployment rates went up drastically in March and April, data from the Bureau of Labor Statistics showed that computer industry unemployment rates actually decreased. Computer-based jobs showed a three percent rate of unemployment in January that decreased to 2.8 percent in April and was further reduced to 2.5 percent in May.

The plaintiffs indicate that focusing on the national unemployment numbers across all industries is misleading as it relates to the restrictions put on work-based visa holders who are employed in specific industries less affected than the overall economy.

Philadelphia Visa Petition Lawyers at the MC Law Group, LLC Represent Foreign Workers

If you are a foreign worker affected by the new H-1B visa restrictions, you may be able to challenge your visa status in court. Workers entering the U.S. on special work visas may have a case against the administration’s announced restrictions. If you are interested in pursuing your right to work in the U.S., contact the Philadelphia visa petition lawyers at the MC Law Group, LLC today. Contact us online or call us at 215-496-0690 to schedule a free consultation. Located in Philadelphia, we serve clients throughout the tri-state area, including Pennsylvania, New Jersey, and nationwide.