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."


Get what matters in tech, in your inbox every morning. Sign up for Source Code.


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.


Get in touch with us: Share information securely with Protocol via encrypted Signal or WhatsApp message, at 415-214-4715 or through our anonymous SecureDrop.


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."

Fintech

Judge Zia Faruqui is trying to teach you crypto, one ‘SNL’ reference at a time

His decisions on major cryptocurrency cases have quoted "The Big Lebowski," "SNL," and "Dr. Strangelove." That’s because he wants you — yes, you — to read them.

The ways Zia Faruqui (right) has weighed on cases that have come before him can give lawyers clues as to what legal frameworks will pass muster.

Photo: Carolyn Van Houten/The Washington Post via Getty Images

“Cryptocurrency and related software analytics tools are ‘The wave of the future, Dude. One hundred percent electronic.’”

That’s not a quote from "The Big Lebowski" — at least, not directly. It’s a quote from a Washington, D.C., district court memorandum opinion on the role cryptocurrency analytics tools can play in government investigations. The author is Magistrate Judge Zia Faruqui.

Keep ReadingShow less
Veronica Irwin

Veronica Irwin (@vronirwin) is a San Francisco-based reporter at Protocol covering fintech. Previously she was at the San Francisco Examiner, covering tech from a hyper-local angle. Before that, her byline was featured in SF Weekly, The Nation, Techworker, Ms. Magazine and The Frisc.

The financial technology transformation is driving competition, creating consumer choice, and shaping the future of finance. Hear from seven fintech leaders who are reshaping the future of finance, and join the inaugural Financial Technology Association Fintech Summit to learn more.

Keep ReadingShow less
FTA
The Financial Technology Association (FTA) represents industry leaders shaping the future of finance. We champion the power of technology-centered financial services and advocate for the modernization of financial regulation to support inclusion and responsible innovation.
Enterprise

AWS CEO: The cloud isn’t just about technology

As AWS preps for its annual re:Invent conference, Adam Selipsky talks product strategy, support for hybrid environments, and the value of the cloud in uncertain economic times.

Photo: Noah Berger/Getty Images for Amazon Web Services

AWS is gearing up for re:Invent, its annual cloud computing conference where announcements this year are expected to focus on its end-to-end data strategy and delivering new industry-specific services.

It will be the second re:Invent with CEO Adam Selipsky as leader of the industry’s largest cloud provider after his return last year to AWS from data visualization company Tableau Software.

Keep ReadingShow less
Donna Goodison

Donna Goodison (@dgoodison) is Protocol's senior reporter focusing on enterprise infrastructure technology, from the 'Big 3' cloud computing providers to data centers. She previously covered the public cloud at CRN after 15 years as a business reporter for the Boston Herald. Based in Massachusetts, she also has worked as a Boston Globe freelancer, business reporter at the Boston Business Journal and real estate reporter at Banker & Tradesman after toiling at weekly newspapers.

Image: Protocol

We launched Protocol in February 2020 to cover the evolving power center of tech. It is with deep sadness that just under three years later, we are winding down the publication.

As of today, we will not publish any more stories. All of our newsletters, apart from our flagship, Source Code, will no longer be sent. Source Code will be published and sent for the next few weeks, but it will also close down in December.

Keep ReadingShow less
Bennett Richardson

Bennett Richardson ( @bennettrich) is the president of Protocol. Prior to joining Protocol in 2019, Bennett was executive director of global strategic partnerships at POLITICO, where he led strategic growth efforts including POLITICO's European expansion in Brussels and POLITICO's creative agency POLITICO Focus during his six years with the company. Prior to POLITICO, Bennett was co-founder and CMO of Hinge, the mobile dating company recently acquired by Match Group. Bennett began his career in digital and social brand marketing working with major brands across tech, energy, and health care at leading marketing and communications agencies including Edelman and GMMB. Bennett is originally from Portland, Maine, and received his bachelor's degree from Colgate University.

Enterprise

Why large enterprises struggle to find suitable platforms for MLops

As companies expand their use of AI beyond running just a few machine learning models, and as larger enterprises go from deploying hundreds of models to thousands and even millions of models, ML practitioners say that they have yet to find what they need from prepackaged MLops systems.

As companies expand their use of AI beyond running just a few machine learning models, ML practitioners say that they have yet to find what they need from prepackaged MLops systems.

Photo: artpartner-images via Getty Images

On any given day, Lily AI runs hundreds of machine learning models using computer vision and natural language processing that are customized for its retail and ecommerce clients to make website product recommendations, forecast demand, and plan merchandising. But this spring when the company was in the market for a machine learning operations platform to manage its expanding model roster, it wasn’t easy to find a suitable off-the-shelf system that could handle such a large number of models in deployment while also meeting other criteria.

Some MLops platforms are not well-suited for maintaining even more than 10 machine learning models when it comes to keeping track of data, navigating their user interfaces, or reporting capabilities, Matthew Nokleby, machine learning manager for Lily AI’s product intelligence team, told Protocol earlier this year. “The duct tape starts to show,” he said.

Keep ReadingShow less
Kate Kaye

Kate Kaye is an award-winning multimedia reporter digging deep and telling print, digital and audio stories. She covers AI and data for Protocol. Her reporting on AI and tech ethics issues has been published in OneZero, Fast Company, MIT Technology Review, CityLab, Ad Age and Digiday and heard on NPR. Kate is the creator of RedTailMedia.org and is the author of "Campaign '08: A Turning Point for Digital Media," a book about how the 2008 presidential campaigns used digital media and data.

Latest Stories
Bulletins