Federal Judge Strikes Down Trump’s H-1B Visa Rules
Updated: Jan 16, 2021
Update (Dec 04, 2020)
On December 03, 2020 the Department of Labor has announced that they will be updating its Foreign Labor Application Gateway and the FLC Data Center website to reflect the updated rates as per pre-Oct 08.
You can read more about how the changes would go into effect in this article.
On Tuesday (December 01, 2020), a federal judge in San Francisco struck down two Trump administration policies.
These policies required employers to pay foreign workers on H-1B visas significantly higher wages and narrowed eligibility for the program.
The Departments of Labor (DOL) and the Department of Homeland Security (DHS) had issued the following rules in early October -
DOL/USCIS rule increases Prevailing Wages, which went into affect on October 08, 2020
Stricter changes to H-1B announced, which would have gone into affect on December 07, 2020.
This ruling is for one of the three lawsuits that were filed against these policies.
The increased prevailing wage rule had increased the salary benchmarks significantly. For a randomly chosen metropolitan area, this is how the numbers differ now versus before for the position of a software developer:
Levels | PW (pre-rule) | PW (post-rule)
Level 1 $60K $92K
Level 2 $83K $114K
Level 3 $103K $135K
Level 4 $113K $158K
Note - the DOL has not yet published the pre-Oct 08 wages.
The second rule The DHS rule redefines the “speciality occupations” criteria that qualifies a foreign national to get a H-1B visa. The petition would have needed to prove that the employee has a college degree in the specific field they are seeking to work in. This rule would have also expanded compliance enforcement and put a limit on H-1B visas granted to third-party staffing agencies for a period of one-year instead of the current three-year period.
Had they remained in effect, the new rules would have made it tougher for foreign workers, particularly new international graduates of U.S. colleges, to qualify for an H-1B visa and significantly more expensive for companies to sponsor them.
Content in this publication is not intended as legal advice, nor should it be relied on as such. For additional information on the issues discussed, consult a WayLit-affiliated attorney or another qualified professional.