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H1-B roundup: Judge blocks Trump work visa orders; DOL reforms pay methodology

A US district judge ruled the president does not have the authority to cast aside immigration laws; the DOL issued an interim final rule reforming the prevailing wage methodology used in several foreign worker programs.

Executive order lawsuit. In issuing a preliminary injunction against the Trump administration’s June 2020 proclamation [1] that suspended the entry of foreign nationals on H-1B, L-1, H-2B and most J-1 temporary visas, US District Judge Jeffrey S. White said the president does not have the authority to cast aside immigration laws passed by Congress, Forbes reports [2].

White’s Oct. 1 order in  [3]National Association of Manufacturers v. the Department of Homeland Security [4] noted the US Supreme Court “has repeatedly emphasized that over no conceivable subject is the legislative power of Congress more complete than it is over the admission of aliens.”

The court’s order precludes the State Department and Department of Homeland Security from “engaging in any action that results in the non-processing or non-issuance of applications or petitions for visas in the H, J, and L categories which, but for Proclamation 10052 [1], would be eligible for processing and issuance,” Forbes reports [2].

Prevailing wages. Separately, The US Department of Labor Tuesday issued an interim final rule reforming the prevailing wage methodology it uses in several foreign worker programs.

The department determined that the existing wage methodology for the Permanent Employment Certification, H-1B, H-1B1 and E-3 visa programs leads to potential abuses of these programs that in some cases undermine the wages and job opportunities of US workers. These harms are exacerbated by the recent effects of the coronavirus pandemic on the US labor market, and require immediate corrective action, according to the department.

“The US Department of Labor is strengthening wage protections, addressing abuses in these visa programs, and ensuring American workers are not undercut by cheaper foreign labor,” said US Secretary of Labor Eugene Scalia. “These changes will strengthen our foreign worker programs and secure American workers’ opportunities for stable, good-paying jobs.”

The primary purpose of these changes is to update the computation of prevailing wage levels under the existing four-tier wage structure to better reflect the actual wages earned by US workers similarly employed to foreign workers. The interim final rule [5] will improve the accuracy of prevailing wages paid to foreign workers by bringing them in line with the wages paid to similarly employed US workers. This will remove the economic incentive to hire foreign workers on a permanent or temporary basis in the US over American workers, according to the department.