Tech Giants Warn H-1B Rules Will Push Businesses Abroad

By Hannah Albarazi
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Law360 (November 2, 2020, 10:31 PM EST) -- Google, Apple and other technology giants have filed an amicus brief challenging the Trump administration's new policies tightening criteria for H-1B visas, claiming the restrictions will significantly interrupt business operations, force companies to terminate current employees and will push business out of the U.S.

Organizations representing dozens of technology companies submitted an amicus brief on Friday urging a California federal judge to enjoin the administration's new visa restrictions on highly skilled international workers, saying the U.S. Department of Homeland Security and U.S. Department of Labor's proposed restrictions will hurt the U.S. economy.

The new rules, published in early October, will irreparably injure the U.S. economy "by forcing U.S. businesses to discharge current employees — disrupting ongoing projects and imposing significant costs, and in some cases forcing companies to transfer work to locations outside the United States," the business organizations, represented by Mayer Brown LLP, told the court.

In their amicus brief, the businesses said the government ignores that most H-1B employees work in the information technology sector, where the "unemployment rate is extremely low, and there is a long-recognized lack of U.S. workers to fill available jobs."

They say these new rules threaten to stunt the U.S. economy's recovery from the coronavirus pandemic.

"The amicus briefs attest to the critical importance of highly-skilled international talent to the U.S. economic recovery, and affirm that changes to the H-1B program should have the benefit of informed stakeholders in business and academia," Elizabeth Espín Stern, a Mayer Brown partner who leads the firm's global mobility and migration practice, told Law360 by email on Monday.

Linda Moore, the president and CEO of TechNet — a bipartisan group that supports growing the innovation economy — said in a statement that the agencies' new rules "... only harm America's ability to remain productive while we continue to battle COVID-19 and as we rebuild our economy. These rules have zero impact on increasing domestic American jobs."

The U.S. Chamber of Commerce, Stanford University and other business groups and schools launched two lawsuits on Oct. 19, claiming the agencies' policies pull the rug out from underneath foreign workers and their employers. 

Both lawsuits claim the administration skirted procedural requirements to fast-track the rules before the presidential election. The rules were both published as interim final rules without first taking into account public feedback, and the Labor Department's wage increases took effect immediately upon publication. DHS' rule is slated to take effect Dec. 7.

The Trump administration claims that the rulemaking process needed to be sped up in light of rising U.S. unemployment caused by the COVID-19 pandemic.

The California suit, which challenges the visa rules issued by both the Department of Labor and Department of Homeland Security, claims the new rules raising the required salaries and tightening the eligibility criteria for H-1B and other high-skilled visas, could aggravate labor shortages, including in the health care field during the pandemic.

The other lawsuit, spearheaded by the American Immigration Lawyers Association and filed in D.C. federal court on behalf of other universities and trade associations, focuses its challenges on the Labor Department's wage hikes.

U.S. universities, including Ivy League schools, and two dozen associations representing several thousand U.S. institutions of higher education, also filed separate amicus briefs on Friday, arguing that the foreign-born researchers whom they employ provide critical contributions that drive U.S. scientific progress, public health and economic vitality.

The new rules "that smack of whim and caprice" not only cause operational and financial harm to universities, but also send a message of exclusion, the colleges and universities told the court, arguing that the agency's rules "will inflict significant harm, immediately."

They say that among the researchers likely to be impacted by the new rules are those developing a COVID-19 vaccine. Frontline workers, including physicians, are also likely to be impacted by the rule change, they told the court.

The American Immigration Council, a nonprofit organization that advocates for the fair and just administration of U.S. immigration laws, also urged the court to enjoin the interim final rules and stressed the importance of a notice and comment period.

"Comments about flaws in the premises on which a proposed rule rests; impracticalities or inefficiencies or lack of clarity in regulatory language; the need to provide alternative procedures are just some of the benefits to an agency from receiving and considering comments before issuing a final rule," the AIC told the court.

Twitter, one of the companies supporting the challenge, said in a tweeted statement, "These rules will stifle the ability of American companies to hire and retain global talent. Not only is the H-1B visa program critical to driving American economic growth and innovation, it also enhances our diversity as a company and as a nation."

Linda Kelly, senior vice president and general counsel at the National Association of Manufacturers said in an emailed statement Tuesday, "The NAM is challenging these interim final rules because they are an illegal attempt to rewrite immigration laws through regulation at the cost of American competitiveness and tens of thousands of American-based workers."

"The broad support from the business community for this challenge demonstrates how important this issue is not only to manufacturers, but across the entire US economy,"Kelly said.

In a separate suit, the U.S. Chamber of Commerce and other business groups, represented by the same counsel, successfully convinced the same California federal judge in this case, U.S. District Judge Jeffrey White, to block President Donald Trump's proclamation barring companies from bringing on new hires on certain work visas, including the H-1B, in light of high U.S. unemployment.

The plaintiffs in that case filed a motion on Saturday asking Judge White to intervene, saying they are "gravely concerned" the Trump administration is flouting that injunction and that visa requests appear to be falling into an "administrative black hole."

A representative for the DOJ didn't respond to a request for comment on Monday.

The amici business organizations and companies are represented by Andrew J. Pincus, Elizabeth Espìn Stern and Maximillian L. Del Rey of Mayer Brown LLP.

American Immigration Council is represented by Zachary Nightingale of Van Der Hout LLP and in-house by Leslie K. Dellon and Kate Melloy Goettel.

The amici higher education organizations are represented by Steven M. Levitan of Hogan Lovells.

The amici colleges and universities are represented by Joseph C. O'Keefe and Andrew M. Sherwood of Proskauer Rose LLP.

The business groups and universities in the California suit are represented by Paul Hughes and William Gaede of McDermott Will & Emery LLP.

The groups and universities in the D.C. suit are represented by Jeff Joseph of Joseph & Hall PC, Charles Kuck of Kuck Baxter Immigration LLC and Greg Siskind of Siskind Susser PC.

The federal government is represented by Carol Federighi, Alexandra Rachel Saslaw and Laurel H. Lum of the U.S. DOJ's Civil Division.

The cases are Chamber of Commerce of the United State of America et al. v. U.S. Department of Homeland Security et al, case number 4:20-cv-07331, in the U.S. District Court for the Northern District of California and Purdue University et al. v. Scalia et al., case number 1:20-cv-03006, in the U.S. District Court for the District of Columbia

--Additional reporting by Suzanne Monyak. Editing by Nicole Bleier.

Update: This article has been updated to include a comment from the National Association of Manufacturers.

For a reprint of this article, please contact reprints@law360.com.

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