Politics

Court strikes down immigration hurdles for foreign tech workers

In a win for big tech companies, a judge has ruled that onerous requirements the Trump administration has placed on H-1B visa holders are "irrational" and "invalid."

Donald Trump

In 2017, President Trump signed an executive order limiting H-1B visas for highly skilled workers. This week, a judge struck down the order, a win for tech companies and the foreign workers they employ.

Photo: Scott Olson via Getty Images

U.S. companies that employ highly skilled foreign workers scored a major victory on Tuesday, as a U.S. District Court judge in Washington struck down a set of onerous requirements that the Trump administration has been imposing on H-1B visa applicants since 2018. The requirements, which include forcing applicants to show exactly what projects they'd work on over a three-year time period, led to a dramatic surge in visa denials since 2016.

The decision came in a case called ITServe Alliance v. Francis Cissna, which pitted an industry association for IT firms against U.S. Citizenship and Immigration Services. But the court's ruling wasn't just a win for the IT outsourcing industry. Given that companies like Microsoft, Amazon, Apple, Google and Facebook are among the top H-1B employers in America, it was a win for big tech — and the foreign workers they employ — too.

"A decision like this has been long overdue," ITServe's national president, Amar Varada, said in a statement. "We finally have the judicial system agreeing with the employers that USCIS has been out of bounds for a long time."

In a statement, USCIS told Protocol, "USCIS is currently reviewing the court's decision, and we have no additional comment to provide at this time."

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At issue in the case was a 2018 policy memo that USCIS published, implementing new rules for adjudicating H-1B applications. Since the 1990s, when the H-1B visa was first created, applicants had to prove to USCIS that they actually had a job offer from a U.S. employer by providing an offer letter, contract or an itinerary detailing where they were going to work and when.

But the 2018 memo said that applicants would now need to explain exactly what assignments they'd be working on at exactly what times throughout the entire three-year period, a change that led to a swift uptick in visa denials, and in some cases, visas that were approved for as little as one day of work. Some H-1B visa holders who had been working in the United States for years and were on track for legal permanent resident status found their visas suddenly denied, starting a countdown clock before they and their families would be forced to leave the country.

In her decision, Senior U.S. District Court Judge Rosemary Collyer wrote that this change was "irrational." Collyer, who was nominated to the bench by former President George W. Bush, said the memo not only contradicts statutes passed by Congress related to H-1B visas, but amounts to an official agency rule that never went through a formal rule-making process, and was therefore, invalid.

"[I]t would effectively destroy a long-standing business resource without congressional action," Collyer wrote.

None of this is to say that the H-1B visa program is otherwise perfect. A recent survey run by OneZero found that H-1B visa workers "report feeling like an underclass, with stressful working conditions and discrimination due to their visa status." Meanwhile, stories have emerged over the years of corporations like Disney firing American workers and forcing them to train their lower-paid, H-1B replacements. The court's decision doesn't fix the problems with the H-1B visa program. But it does eliminate one of the newer hurdles interrupting both workers' lives and the operations of the companies that hire them.

The court ordered USCIS to reopen the nearly 100 applications in the case and adjudicate them within 60 days, without subjecting them to these new requirements.

"On one hand I'm not surprised in the least by the court's decision," said Jonathan Wasden, an attorney with Wasden Banias, who represented the ITServe Alliance. "On the other hand, it's still fun." Wasden has also filed a series of lawsuits over what he argues are unreasonable delays in the adjudication of H-4 visas for the spouses of H-1B visa holders, which Protocol has covered in depth.

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USCIS now has 30 days to appeal the court's decision. For Wasden, that would be a welcome outcome. USCIS' own officer training guidelines regarding how to interpret case law state that "typically, U.S. District Court decisions are not binding on other courts or on you." Wasden said that means the agency may well disregard this decision as it pertains to cases outside of Washington. A circuit court of appeals ruling, on the other hand, could compel the administration to end this practice, not just in D.C., but across the country.

"It would be a birthday present to me if they appeal," Wasden said.

The District Court opinion alone is still an important step. And in the near future, he said, if companies or workers run into similar visa issues, they now know that if they bring a case in Washington, they "have a pretty sure shot of winning."

 Issie Lapowsky

Issie Lapowsky ( @issielapowsky) is Protocol's chief correspondent, covering the intersection of technology, politics, and national affairs. She also oversees Protocol's fellowship program. Previously, she was a senior writer at Wired, where she covered the 2016 election and the Facebook beat in its aftermath. Prior to that, Issie worked as a staff writer for Inc. magazine, writing about small business and entrepreneurship. She has also worked as an on-air contributor for CBS News and taught a graduate-level course at New York University's Center for Publishing on how tech giants have affected publishing.

trump administration immigration big tech microsoft amazon apple google facebook visas h-1b visas
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