Kripa Upadhyay features in Times of India article entitled: ‘Court strikes down Trump admin’s H-1B restrictions’

MUMBAI: A US district court

 has set aside the two recently introduced rules that stifled hiring of H-1B workers, by significantly hiking wages and restricting eligibility norms. These rules, were promulgated on a fast track basis and introduced as interim final rules in early October, without the normal procedure of inviting public comments and vetting the same – a process that can take several months.

Judge Jeffrey S White of the US district court (Northern District of California) in his order dated December 1, held that the Trump administration had failed to show there was good cause to dispense with the rational and thoughtful discourse that is provided by the Administrative Procedure Act’s (APAs) notice and comment requirements.

The ruling is important from the point of view of Indians already in the US, whose H-1B applications would come up for renewal and also those aspiring to take up employment in the US. Indians constitute the largest chunk of beneficiaries of H-1B visas. Nearly 2.78 lakh (or 72%) of H-1B visas issued or renewed during the fiscal year ended September 30, 2019 were allotted to Indians. The rules would have made hiring of H-1B applicants expensive and out of synch with market realities. It would also have spiked rejections during the processing of the visa applications.

The rule issued by the department of labour (DOL), which came into effect from October 8, had hiked significantly by 40% to 100% the wages for H-1B workers and employment green card holders.

The minimum wages that US employers must pay to H-1B workers (as well as to workers with EB-2 and EB-3 visas) were raised to artificially high levels – vastly exceeding what comparable domestic (American) workers are paid.

For some 18,000 combinations of occupations and geographic locations, DOL has set the prevailing wage rate at $100 an hour, or $208,000 a year. This includes, for example, a software developer in the San Jose-Sunnyvale-Santa Clara area. While a private wage survey from Willis Towers Watson shows that an entry level employee in this field and location earns approximately $70,600 per year, DOL would raise that amount by $137,400.