Donald Trump administration to face more lawsuits challenging H-1B rules close to two weeks before elections

Even as the Donald Trump administration faces off Joe Biden for the upcoming US elections on November 3, they will also be facing off with immigration attorneys who have challenged the new H-1B new rules.

The new rules increased the wage hikes for H-1B workers and also made qualifying for H-1B visa tougher.

First of the lawsuit filed by US IT companies on October 16 was against the wage hike rule. Two more are likely to follow in the coming days, possibly challenging both the rules.

Greg Siskind, an immigration lawyer from Memphis, said in a tweet, “The first of three lawsuits (ITSERVE Alliance v Scalia) challenging the new DOL wage regulation was filed tonight…Our suit is coming Monday and the third probably Monday as well.”

The first of three lawsuits (ITSERVE Alliance v Scalia) challenging the new DOL wage regulation was filed tonight by my friend Jonathan Wasden and Brad Banias @wasdenbanias. Our suit is coming Monday and the third probably Monday as well.

— (((Greg Siskind))) (@gsiskind) October 17, 2020

If you, your employer or your client is shocked by the @DOL Interim Final Rule on Prevailing Wages, HOLD off getting a wage. @AILANational @blesjm1 @jeffjoseph @gsiskind and @ckuck will be bringing litigation shortly, with a TRO to stop this illegally issued regulation.

— Charles Kuck (@ckuck) October 16, 2020

This comes in a long line of lawsuits the Trump administration faced over the last few months for the ban on the entry of immigrants. In two proclamations, President Donald Trump banned the entry of temporary guest workers and immigrants into the country to address rising unemployment in the US.

It attracted close to half a dozen lawsuits challenging the ban by various stakeholders:

1. Tech firms and trade organisations like National Association for manufacturers
2. 171 Indian H-1B visa holders and their dependents,
3. H-4 visa holders on account of long delay in processing their employment authorisation document
4. Couple of lawsuits filed for diversity visas, which are awarded to countries that has lower rate of immigration in the US.
5. US universities such as Harvard and Massachusetts Institute of Technology (MIT) against the Trump administration’s new rule that forced international students to leave the US.

It more or less started with the travel ban in 2017 where Trump signed an executive order that restricted travel from seven countries - Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. Scope of restrictions increased and more countries were added to the list. These restrictions attracted lawsuits from Silicon Valley companies like Amazon and Microsoft. Some reports peg it to 50.

In some cases the Trump administration lost. The recent one being the June 22 travel ban, where the US Federal court ruled in favour of trade organisations and asked the Department of Homeland Security to process guest worker visas even as trial for the same progresses.

In 2018, ITServe Alliance, an association for US IT firms, sued the immigration agency the US Citizenship and Immigration Services for illegally collecting $350 million for H-1B visa processing and won.

In a judgement in March 2020, a US court quashed the memos, which imposed restrictions on H-1B workers and declared them unlawful. In addition, the court said that the USCIS is mandated to give justification for shorter duration approved for every H-1B visa.

This was a huge win for IT services firms, whose visa costs and subcontractor costs increased over the last couple of years.

In the recent lawsuits too, there are enough grounds favouring the plaintiffs. Joel Yanovich, an immigration attorney from US-based Murthy law firm, in an earlier statement, had told Moneycontrol that the further the Trump administration goes through with regulatory changes, the more vulnerable they are in the court.

The recent rules fall right into this category. For instance the new H-1B wage hike rule came into force without following the notice and public commentary period. Also, the Department of Homeland Security (DHS) announced these rules at a time when the acting secretary of DHS Chad Wolf’s appointment is yet to be made official.

Of course, a lot could change depending on the outcome of the US Presidential elections. For, the outcome is likely to have a bearing on how much of these immigration restrictions stay.