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Caltech Joins Lawsuit to Block Administration’s New Visa Rules

Published on Monday, October 19, 2020 | 9:55 pm

Caltech, USC and four other research institutions and public universities have filed suit in federal court to block the U.S. Department of Homeland Security and the U.S. Department of Labor from implementing rules to limit the number of foreign high-skilled workers allowed to work in the United States.

Also party to the action are the Presidents’ Alliance on Higher Education and Immigration and business, manufacturing, trade, and labor organizations.

The plaintiffs allege the administration’s new rules, published Oct. 8, are “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 the Jet Propulsion Laboratory, more than 160 scientists, engineers, and scholars are active visa holders and currently contribute to the Institute’s research and educational enterprise, according to Caltech. 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,” said Caltech president Thomas F. Rosenbaum. “To this end, the H1-B 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.”

Ken Cuccinelli, the senior official performing the duties of the DHS deputy secretary, and Patrick Pizzella, the deputy labor secretary, told reporters earlier this month that the measures are being implemented using an expedited process because of the coronavirus pandemic’s impact on the U.S. workforce.

“With millions of Americans looking for work and as the economy continues its recovery, immediate action is needed to guard against the risk that lower-cost foreign labor can pose to the well-being of U.S. workers,” Pizzella said.

The H-1B program is popular with U.S. technology companies and other firms that say they struggle to find enough engineers, computer scientists and other highly skilled workers. The program has a cap of 85,000 visas per year, awarded using a lottery system and typically are valid for three years.

Last year, U.S. Citizenship and Immigration Services estimated there are more than 583,000 H-1B visa holders working in the United States. About 70 percent of H-1B visa holders are from India, according to a report by Rand using federal data. An additional 15 percent are granted to applicants from China. No other country accounts for more than 2 percent.

One of the proposed changes would shorten the visas’ validity to one year for workers who are hired through third-party consulting firms.

Opponents of the H-1B program say it incentivizes companies to replace their American employees with cheaper foreign labor.

The new DHS rule represents sweeping changes to H-1B eligibility. The complaint by Caltech, USC and their co-plaintiffs alleges that the new DHS rule “redefines what qualifies as a `specialty occupation,’ tightening the category of individuals who will qualify.” 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.”

The lawsuit says the new rule “is a poison pill that would destroy the whole H-1B system” by raising 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 suit also says the Department of Labor 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 lawsuit, filed on Oct. 19 in the U.S. District Court for Northern California, asks for the DHS rules, which become effective Dec. 7, and the Department of Labor companion rules, which took effect when they were announced, to be 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 include the Chamber of Commerce of the United States, 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.

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