A George W. Bush federal judge appointee voided a Trump-era H-1B regulation that switched the visa allocation system from a random selection lottery to a process that prioritizes higher-wage jobs. By putting emphasis on higher wages, tech employers would, President Trump hoped, be less likely to hire cheaper, foreign-born workers, and instead select more qualified overseas and American employees.
U.S. District Judge Jeffrey S. White, for the Northern District of California, Oakland Division granted the Chamber of Commerce’s (COC) motion for summary judgment, and permanently struck down the Trump-era changes to the H-1B visa. White’s ruling, based on his assessment that then-Acting DHS Secretary Chad Wolf was not lawfully serving in his role at the time, was a triumph for the Chamber and other cheap labor-addicted employers, and another setback for U.S. tech workers.
Chamber Vice President of Immigration Policy, Jon Baselice, called White’s ruling “…a major victory for American businesses and our economy. If implemented, the H-1B lottery rule would have denied many companies access to the talent they need to expand their operations and create American jobs.” COC is not the working man’s voice; the largest D.C. lobby spent $30 million in 2021 often with the goal of keeping a steady cheap labor flow going to bolster American industries’ bottom line.
The COC’s lawsuit specifically brought up the issue that if the H-1B selection process prioritizes highest wages, then international students would be harmed because they are recent graduates and getting entry-level wages. The judge ignored that argument and decided to judge the case solely on the fact Chad Wolf was, in his view, illegally appointed as DHS Secretary.
President Trump’s goal aspired to raise the wages that employers would have to pay to H-1B visa holders, or optionally to hire from the unemployed, displaced U.S. tech worker pool. Early in his four-year term, President Trump signed his “Buy American, Hire American” executive order which, on January 21, Biden revoked. The Biden administration’s labor objective is the direct opposite of Trump’s. Biden proposed to increase employment-based visas, and eliminate the country cap which would open up jobs for foreign nationals, almost exclusively to Indians.
For decades, H-1B visas have been controversial. Supporters claim the visa holders are highly skilled, outperform U.S. tech workers, and without them, America would quickly become noncompetitive in the global market. Opponents allege that tech employers have abused the original intent of the visa to complement the existing American workforce and that as currently applied is unfair to both international and U.S. tech workers. The Economic Policy Institute’s Daniel Costa wrote that employers have “hijacked the system” by using between one-third to one-half of the H-1B visas to replace thousands of U.S. workers with “much-lower-paid H-1B workers while also sending tech jobs abroad.”
Lobbyists like the Chamber of Commerce argue, falsely, that U.S. tech workers aren’t available, and importing “the best and brightest” is essential. But employers aren’t legally required to recruit Americans or prove that they have a labor shortage before they hire H-1Bs who they can, also legally, underpay. Moreover, the employer chooses whether his employee receives Level 1 or Level 2 wages, the lowest, and the government doesn’t check unless the unlikely happens – workers file a lawsuit or a complaint. If and when a foreign national files a lawsuit, he risks that his employer, who controls his visa, could take steps to have him deported.
For more than 30 years, ample evidence has been presented to Congress that the H-1B harms U.S. tech workers. Nevertheless, tech employers, the Chamber of Commerce and immigration lawyers have consistently persuaded Congress – to U.S. tech workers’ detriment – that H-1B foreign-born employees are an indispensable cog necessary to keep the economy purring.
Ray Marshall from President Jimmy Carter’s administration put forward the most concise, critical, but accurate H-1B summation. Said Marshall, who as Labor Secretary understood the negative effect imported workers had on Americans: “One of the best con jobs ever done on the American public and political systems…. H-1B pays below market rate. If you’ve got H-1B workers, you don’t have to do training or pay good wages.” Marshall described the great deal employers and foreign-born workers get, but the raw deal for U.S. tech workers.