史上最严H1B新规被叫停

上周二(12月1日),美国加州北区联邦法院法官Jeffrey White叫停了川普政府关于H1B的新政策。此判决意味着这一被大家称为史上最严的H1B政策改革暂停实施,关于H1B的政策按照改革前的规定。

法官White判定美国劳工部和国土安全部的这两份公告无效。他判定,由于新冠疫情导致的就业危机并不是劳工部和国土安全部绕开行政程序法(Administrative Procedure Act)中有关公告和接受公众意见的正当理由。因此,这两份公告判定无效。

这两份公告正是前不久让许多准备申请H1B的申请人十分绝望的两份公告。一份由美国劳工部公布,大幅提高了H1B的工资要求,使得许多申请人将无法进行H1B申请。另一份由美国国土安全部公布,缩小了专业职位(specialty occupation)和雇主雇员关系(employer-employee relationship)的定义,强调申请人必须拥有和工作匹配的学位专业,将三年缩短为一年等。这项改革这两份联合起来有效的将许多申请者拒之门外。

这份判决叫停了川普政府收紧H1B政策的步伐。虽然川普政府仍可上诉,但这一判决维护了外籍人才和许多美国商业主的机会和可能。让我们期待H1B政策的变化将向着我们所希望的方向发展!

 

The H1B Program Changes Were Overturned by Court

Last Tuesday (December 1, 2020), Northern California District Court Judge Jeffrey White overturned the changes of H1B brought in by the Trump administration. This decision prevented the changes which significantly restricted the H1B applications.

Judge White decided that the interim rules for H1B issued by the Department of Labor (DOL) and Department of Homeland Security (DHS) were invalid. He held that the unemployment crisis caused by COVID-19 is not a good cause for DOL and DHS to bypass the requirements of notice and comment under . Therefore, the issued two interim final rules were overthrown.

These two rules were promulgated very fast and introduced as interim final rules without the procedure of inviting public comments. The DOL’s rule dramatically increased the minimum wage levels, therefore price out H1B workers out of the market. The DHS narrowed the definition of specialty occupation and employer-employee relationship, shortened the visa from three years to one year for a worker placed at third-party worksites. These rules effectively impacted a lot of H1B worker’s application.

The court’s decision prevents the Trump administration from tightening requirements for H1B. Although the possibility of an appeal exists, this ruling defended the opportunities of skilled foreign nationals and many US business.