Judge Blocks Donald Trump’s H-1B Reforms

A judge on Tuesday blocked President Donald Trump’s reforms of the H-1B visa worker program that allows Fortune 500 CEOs to sideline many American professionals and new graduates.

“Breaking: Judge White, Northern District of California, sets aside both the [Department of Labor] and [Department of Homeland Security] H-1B regulations,” said a tweet by the business groups’ lawyer, Paul Hughes. “These regulations sought to destroy the H-1B program.”

“Today’s ruling is great news for Americans, and for the ability of the U.S. to remain the top destination for talented individuals,” said a statement from FWD.us, an advocacy group created by Facebook founder Mark Zuckerberg and other West Coast investors.

Judge Jeffrey White argued Trump’s rules were illegal because officials had not spent enough time collecting and responding to comments from companies and workers who would be impacted by the change: “Defendants failed to show there was good cause to dispense with the rational and thoughtful discourse that is provided by the [Administrative Procedure Act’s] notice and comment requirements … the Court sets aside the Rules.”

Trump’s two rules raised the wages that would be paid to 85,000 new H-1B visas by companies, tightened skill requirements for foreigners seeking specialized jobs, and reduced the duration of visas given to companies that import H-1Bs for lease to other companies.

The administration can appeal the decision by the San Francisco judge — but likely won’t get a positive answer before January 20, said John Miano, a lawyer with the Immigration Reform Law Institute.

Biden’s deputies are unlikely to appeal the judge’s decision, said Miano. His campaign was heavily supported by the Silicon Valley firms that use H-1B workforces to minimize the hiring of the ordinary Americans who can learn and then quit to create innovative products.

The resident population of foreign H-1Bs in the United States jobs is at least 580,000. But the resident total may reach one million partly because many H-1B are allowed to stay and work for many years.

The H-1Bs are widely used to fill lower-level, mid-skill jobs in many Silicon Valley and Fortune 500 companies. They are also used to fill many of the gig-worker contract jobs that are now outsourced by Fortune 500 companies — but which were once used to hire and train the nation’s workforce of American professionals. Many foreign workers are eager to take these jobs at low wages in the hope of winning the valuable green cards dangled by the employers.

The judge’s decision is a big loss to every U.S. skilled graduate who is stuck in their national labor market flooded with unemployed American graduates and foreign visa workers, Miano said:

It basically impacts every college-educated person. Any college-educated person is now in a job where they can be replaced by foreign workers — or not even get hired. We have basically exported hiring for the tech-industry to third parties. Now, U.S. graduates are going to [online recruiters in] India to apply for jobs in the United States.

Trump’s deputies — and Trump himself — delayed approval of the new rules for so long that pro-reform deputies did not have time to complete the full notice and comment process before posting the rules, Miano said.

Trump would have won reelection if he had made the visa-worker issue into a campaign theme in Pennsylvania, Georgia, Michigan, Wisconsin, and other states, Miano said.

He would have won in a landslide. He didn’t. If I was writing a Donald Trump [TV] ad, I’d sit there and say, “You know,  when the [Tennesee Valley Authority]  was replacing American workers, Donald Trump stepped in to stop it, and the only reason the TVA was trying to replace Americans with foreign workers is because Joe Biden voted to make it legal.” We didn’t see anything like that.

The speech and vehemence of the judge’s decision show many judges are eager to join the establishment’s resistance to Trump, he said.

“He went Maximum No,” said Miano, even though he could have delayed a final decision until Trump’s deputies finished considering the comments they sought and received after posting the emergency rules. “He could have said ‘Okay, you know, it’s an emergency, but I don’t think it had met the standards, so what we’ll do is let you go, remand it in place to do the required notice and comment,” said Miano.

The judge’s decision to strike down Trump’s wages rules preserves the prior wages that help CEOs hire cheaper foreign labor, said Miano. But those older wage rules were set without any comments from American employees who were and are hurt by the existing wage rules, he said.

Many judges bend over backward to quickly help business groups preserve visa worker programs that have been created in complete disregard of the regulation-writing rules or the lack of national emergencies. he said. “Those cases are flying through the courts,” said Miano, who has been shunted from one slow judge to another slow judge over the last five years as he tries to end two business-backed regulations that flood the labor market for U.S. college graduates.

“We’re approaching six years. Sue [President Barack] Obama, you go through the hoops. Sue [President George W.] Bush, you go through the hoops. Sue Trump, and they jump for you. Clearly, something has been different,” he said.

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