A federal judge on Tuesday blocked the government’s attempt to force companies to offer better pay to Americans before looking to hire skilled foreign workers for those jobs, ruling that the Trump administration cut too many corners.
The Labor and Homeland Security Departments had tried to justify speeding the changes into effect by citing the coronavirus pandemic, but Judge Jeffrey S. White said that was too weak a reason to dispense with the usual notice and comment requirements for a major policy change.
“Without any consultation with interested parties about the impact on American employers, DHS and DOL made changes to policies on which Plaintiffs and their members have relied for years and which are creating uncertainty in their planning and budgeting,” ruled Judge White, who was appointed to the court by President George W. Bush.
At issue were changes to the H-1B visa guest worker program, which allows tens of thousands of foreigners to take jobs each year. The H-1B is particularly popular among tech companies, some of which have used it to oust Americans and brought in foreign workers to replace them.
President Trump had campaigned in 2016 on reeling in the H-1B, but his administration waited until the waning days of this term to act.
Now, with presumptive President-elect Joseph R. Biden poised to take the reins next month, Tuesday’s ruling creates an easy path for him to abandon Mr. Trump’s attempt.
The rule had been slated to take effect Dec. 7.
In order to issue an H-1B a company is supposed to prove that it couldn’t find a worker already in the U.S. at the prevailing wage. The rule was intended to raise that prevailing wage figure, so companies would have to offer better pay before turning to migrant labor.
Major business groups had sued to stop it, arguing they relied on those foreign workers to fill out their workforce and other American jobs depend on them.
They also claimed the coronavirus pandemic, which has left millions of Americans out of work, makes reliance on foreign skilled labor more important.
“We need high-skilled innovators now more than ever,” said Linda Kelly, general counsel at the National Association of Manufacturers, which was among those challenging the Trump administration’s attempts to limit foreign workers.
Judge White’s ruling is the latest in a lengthy list of cases where the Trump administration was found to have cut corners in violation of the Administrative Procedure Act.
The APA has been particularly devastating to the president on immigration, where everything from asylum changes to his attempt to reel in the Obama-era DACA deportation amnesty for “Dreamers” has been blocked by judges citing the law.
• Stephen Dinan can be reached at sdinan@washingtontimes.com.
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