Lawyers for Chamber, Trump administration spar over need for H-1B restrictions
11/23/20 REUTERS LEGAL 22:38:32
Copyright (c) 2020 Thomson Reuters
Daniel Wiessner
REUTERS LEGAL
November 23, 2020
The U.S. Department of Justice building is bathed in morning light at sunrise in Washington, U.S., February 14, 2020. REUTERS/Mary F. Calvert
(Reuters) - A lawyer for the Trump administration on Monday told a federal judge in California that the "unprecedented economic emergency" triggered by the COVID-19 pandemic justified the adoption of rules limiting the H-1B visa program without first calling for public input.
At a hearing conducted via Zoom, Alexandra Saslaw of the U.S. Department of Justice told U.S. District Judge Jeffrey White in Oakland that the administration believed the restrictions on foreign labor would make it easier for American workers left unemployed amid the pandemic to find new jobs.
And that provides the "good cause" necessary to circumvent the Administrative Procedure Act's requirement that agencies solicit and review public comments before adopting final rules, Saslaw said.
She asked White to deny a motion for a preliminary injunction blocking the pair of rules by a coalition of universities and major business groups including the U.S. Chamber of Commerce.
In October, the U.S. Department of Homeland Security adopted a rule limiting participation in the H-1B program, including by narrowing the definition of "specialty occupations" covered by the program. On the same day, the U.S. Department of Labor raised the minimum wages that must be paid to H-1B workers with different levels of experience.
The Chamber and the other plaintiffs in a lawsuit filed last month said the agencies violated the APA by adopting the rules without first allowing for public comment.
Paul Hughes of McDermott Will & Emery, who represents the plaintiffs, told White on Monday that the administration in adopting the rules did not sufficiently link them to the economic fallout of the pandemic. He said government statistics show that unemployment rates in the computer-related occupations that disproportionately employ H-1B workers have remained low throughout the pandemic.
Hughes also said the delay in finalizing the rules until seven months after the pandemic began undermined the agency's claims that they were urgently needed.
"Even if there is some effect, this is not the sort of dire emergency that allows the government to use these extraordinary powers," Hughes said.
But Saslaw countered that the agencies were properly looking not only at the initial unemployment statistics, but also at the pace of recovery as the pandemic wears on and the health of large sector of the economy.
"A rule with even a marginal effect in isolation is necessary to accomplish the goal of facilitating an economic recovery in the aggregate," she said. "It's possible there might've been a narrower lens to look at this, but I don't think it's required to look at the smallest possible slice of data."
Last month in a separate lawsuit brought by the Chamber and other business groups, White issued an injunction striking down President Donald Trump's temporary ban on H-1B workers and many other visa holders from entering the U.S., saying Trump had exceeded his authority.
But that case involved the scope of the president's power to issue immigration rules, rather than federal agencies' obligations under administrative procedure law.
White on Monday did not signal how he could rule on the bid to block the DOL and DHS rules.
The case is Chamber of Commerce of the United State of America v. U.S. Department of Homeland Security, U.S. District Court for the Northern District of California, No. 4:20-cv-07331.
For the plaintiffs: Paul Hughes of McDermott Will & Emery.
For the government: Alexandra Saslaw and Carol Federighi of the U.S. Department of Justice
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