Caltech and five other research institutions and public universities, along with the Presidents' Alliance on Higher Education and Immigration, and business, manufacturing, trade, and labor organizations, have filed suit in federal court to block the U.S. Department of Homeland Security (DHS) and the U.S. Department of Labor (DOL) from implementing and enforcing interim final rules that were published October 8. The institutions and organizations filing the lawsuit allege that these rules were "designed to substantially restrict, if not outright eliminate the H-1B visa category."
The H-1B program allows high-skilled workers to come temporarily to the United States to perform services in a specialty occupation. The complaint alleges that H-1B workers are "critical members of U.S. higher education institutions, performing ground-breaking new research and educating thousands of American students. All this productivity, in turn, creates net new jobs for the domestic labor market. And H-1B visa holders inject ingenuity, entrepreneurship, and cultural diversity across the United States."
In the Caltech community, including JPL, more than 160 scientists, engineers, and scholars are active visa holders, and currently contribute to the Institute's research and educational enterprise. These individuals provide knowledge and perspective that has advanced scientific discovery, supported the development of new instrumentation, and accelerated the Institute's contributions to society overall.
"Seminal achievements in science and technology, as well as the ability of institutions like Caltech to respond to today's most critical challenges, depend on the contributions of ambitious and original scholars from around the world," says Caltech president Thomas F. Rosenbaum. "To this end, the H-1B visa program has helped the United States become the destination of choice for these immensely talented individuals, providing security in their employment status. If these rules stand, they will undercut an historical advantage for American universities and industry, to the detriment of society as a whole."
The new DHS rule, Strengthening the H-1B Nonimmigrant Visa Classification Program, represents sweeping changes to H-1B eligibility. The complaint alleges that the new DHS rule "redefines what qualifies as a 'specialty occupation,' tightening the category of individuals who will qualify—all at odds with the statutory definition." It also lowers the validity period of visas issued to H-1B workers employed at third-party job sites from three years to one year, while imposing "burdensome compliance requirements regarding third party contracts and work itineraries" on employers.
The new DOL rule, Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States, also announced October 6, "is a poison pill that would destroy the whole H-1B system," according to the allegations in the lawsuit. The DOL Rule raises the minimum wages paid to H-1B workers and workers with EB-2 and EB-3 visas to artificially high levels that vastly exceed what comparable domestic workers are paid. The DOL itself, the lawsuit notes, has calculated that its new rule "will result in at least $198.29 billion in costs imposed on employers over a 10-year period."
The interim rules, the lawsuit alleges, "are extraordinary: If left unchecked, they would sever the employment relationship of hundreds of thousands of existing employees in the United States, and they would virtually foreclose the hiring of new individuals via the H-1B program. They would also gut EB-2 and EB-3 immigrant visas, which provide for permanent residence in the United States."
The complaint alleges that the government failed to comply with the notice-and-comment period as required by the Administrative Procedure Act (APA), and that there was an insufficient basis to justify the immediate publication of the rules. Consequently, the complaint alleges, despite the impact of the rules on hundreds of thousands of individuals and on scores of hospitals, universities, businesses, and others that employ these workers, neither employers nor employees had an opportunity to provide data and insight into the impact of the rules.
The coalition's lawsuit, filed on October 19 in the United States District Court for Northern California, asks for the DHS rules, which become effective December 7, and the DOL rules, which were effective immediately, to be swiftly enjoined pending the outcome of the lawsuit.
In addition to Caltech, the other higher education institutions joining the lawsuit are Cornell University, Stanford University, the University of Southern California, the University of Rochester, and the University of Utah. The other plaintiffs involved in the lawsuit include the Chamber of Commerce of the United States of America, the National Association of Manufacturers, the National Retail Federation, the Bay Area Council, the American Association of International Healthcare Recruitment, the Presidents' Alliance on Higher Education and Immigration, and Arup Laboratories.