By: Kailin Wu
On June 22, 2020, the Trump Administration issued a proclamation suspending the issuing process for new H-1B visas. The proclamation resulted in several major U.S. companies bringing suit against the administration. These industries have a long history of hiring highly skilled foreign-born workers.
For years, U.S. businesses have employed non-U.S. citizens through the H-1B visa process. An H-1B visa allows “graduate level workers in specialty occupations that require theoretical or technical expertise in specialized field such as in IT, finance, accounting” as well as many other fields. The H-1B visa allows non-U.S. citizens to remain and work in the U.S. for a period of up to six years. According to an annual report by the Office of Foreign Labor Certification, the three most common sectors using H-1B visas are Computer Systems Analysis, Software Development, and Computer Programming. These three sectors make up almost half of all H-1B visas currently in the United States.
In signing the proclamation, the Administration cited the growing unemployment rate due to COVID-19. On October 1st, Judge Jeffery White for the Northern District of California ordered an injunction blocking the proclamation from taking effect. Judge White ordered the injunction on the grounds that “the president does not have unlimited authority with regard to employment of foreign national workers.” Judge White also noted that, despite the unemployment statistics the Administration cited, unemployment is concentrated in service occupations and industries using H-1B visas continue to see job vacancies.
Five days after Judge White order his injunction, the Administration announced new rules for the H-1B program. The announcement was made in conjunction with Homeland Security and the Labor departments and would greatly restrict the number of people eligible to receive an H-1B visa. Almost immediately, several U.S. companies, as well as several universities, filed two new lawsuits against the Administration claiming that the rules would unfairly force 200,000 foreign-born workers in the science and technology sectors to leave the country once their current visa expires.
These new restrictions would make hiring foreign-born workers much more difficult by increasing the wage requirements, thus requiring U.S. employers to overpay for H-1B workers and also limiting the occupations eligible for H-1B visas. These new lawsuits will have a significant effect on the science and technology industries. The plaintiffs argue that roughly a third of the approximately 580,000 foreign-born workers will be deemed ineligible for renewal and forcing them to leave both their job and lives in America. If these new rules are held to be a proper exercise of the President’s power, it will force a significant number of American businesses to overhaul their entire hiring practices.
 Danilo Zak, President Trump’s Proclamation Suspending Immigration, Nat’l Immigr. F. (June 23, 2020), https://immigrationforum.org/article/president-trumps-proclamation-suspending-immigration/.
 Priyanka Sangani, US court blocks Trump ban on H-1B, Econ. Times (Oct. 2, 2020, 7:12 PM), https://economictimes.indiatimes.com/nri/visa-and-immigration/us-district-court-blocks-h-1b-visa-ban/articleshow/78441953.cms.
 Work Permit, https://workpermit.com/immigration/usa/us-h-1b-visa-specialty-workers (last visited Oct. 30, 2020) (explaining the function of H-1B visas and the process of obtaining one).
 Off. of Foreign Labor Certification, Annual Report (2016).
 Sangani, supra note 2.
 Tanvi Misra, Trump administration unveils new H-1B visa restrictions, Roll Call (Oct. 6, 2020 6:07 PM), https://www.rollcall.com/2020/10/06/trump-administration-unveils-new-h-1b-visa-restrictions/.
 Stuart Anderson, Two More Major Lawsuits Filed Against Trump H-1B Visa Restrictions, Forbes (Oct. 20, 2020), https://www.forbes.com/sites/stuartanderson/2020/10/20/two-more-major-lawsuits-filed-against-trump-h-1b-visa-restrictions/#6cdade29175e.
 Misra, supra note 13.
 Anderson, supra note 15.