World

Purdue University, University of Michigan and 15 others join hands in a lawsuit against H-1B wage hike

MUMBAI: Several US based universities and non-profit organisations have filed a lawsuit in a US district court against the wage hike recently introduced via an interim final rule by the US Department of Labour (DOL).
Institutions of higher learning, such as Purdue University, University of Michigan, University of Denver, Chapman University, Bard College, Arizona State University, Indiana University, non-profits such as Dentists for America, Physicians for American Healthcare Access, Information Technology Industry Council constitute the group of 17 plaintiffs. They are represented pro-bono by the American Immigration Lawyers Association (AILA) and prominent immigration attorneys.
In their lawsuit-petition they point out that interim final rule, was made effective on October 8, within 48 hours of its being made public. The Office of Information and Regulatory Affairs (OIRA) waived the review of the cost-benefit analysis of the rule, without following the legal requirement for advance notice to the public, or without first providing an opportunity for the public to comment.
The obligation of DOL to consider and then respond to comments before adopting the new legislative rules was not followed. Further, a thirty-day comment period was open, but after the rule was made effective.
“The Defendants (Secretary of Labour and DOL ) were single-minded in their rush to publish the interim final rule, without regard to the costs on the economy generally, and specifically the increased costs to employers dependent on foreign national and US labor,” states their petition filed with the district court of Columbia.
For instance, the University of Michigan, points out that if the required wage for each employee is increased by $2,500 on a yearly basis, the total increase in annual salaries (excluding benefits) would conservatively be one million dollars, which is unsustainable.
The Plaintiffs add that the authorities lacked good cause to waive the requirement of issue of notice and comment period. Even if good cause existed, which it does not, the substantive changes made remain based on faulty, undocumented, and irrational economic assumptions. Under the interim final rule, plaintiffs and similarly situated employers now must pay dramatically higher wages for foreign national employees as compared to similarly situated Americans – in some instances the required wages increased 50% overnight.
The interim final rule is procedurally defective, contrary to law, and arbitrary and capricious under Administrative Procedure Act. For these and other reasons, the interim final is unlawful and should be set aside, states the lawsuit filed with the US district court of Columbia.
Case study: The University of Michigan, which is one of the plaintiffs, points out it is is among the largest employers in Michigan supporting over 52,000 regular faculty and staff, which includes research fellows, physicians, nurses. It is also among the largest academic H-1B petitioners (filing over 400 H-1B applications annually) and green card filers in the country and employs more than 750 employees in H-1B status. In the lawsuit petition it illustrates wage hikes across several occupations and adds that even if the required wage for each employee is increased by $2,500 on a yearly basis, the total increase in annual salaries (excluding benefits) would conservatively be one million dollars.
It is likely that the budgetary impact would be significantly larger, both in direct wage obligations to affected international employees as well as in indirect wage pressure. Given current budgetary constraints occasioned by the pandemic, new H1B salary levels would be unsustainable.
The inability to retain key personnel, including research, clinical practitioners, and teaching personnel, will also impact the mission to stay on the forefront of biomedical research during a pandemic and to care for and treat those afflicted.
Views of the attorneys:
Jesse Bless, AILA’s Director of Federal Litigation stated, “Standing alone, the failure of the government to provide the proper notice and opportunity for comment before making such dramatic changes, requires an immediate relief for plaintiffs. But the arguments against this rule stretch far beyond its unlawful implementation. The increase to the prevailing wages will manifestly not benefit US economic growth or any workers. Study after study has shown that H-1B visa holders create American jobs. The regulation has caused immediate and unnecessary harm in every corner of our economy, including academic institutions, non-profits, hospitals, start-ups, and small businesses.” “Frankly, the last thing we need during a pandemic and economic turmoil is a rule based on a false and incorrect understanding of the market and American workforce. This will impede our economic recovery, not enhance it,” she added
Jeff Joseph, Senior Partner of Joseph and Hall, PC, stated, “Dealing with the Department of Labour often feels like The Hunger Games. Everyone is required to play the game, but no one knows the rules and the rules are constantly changing. This is not a game. The fact that the rule was made effective without thinking about the destructive impact it would have on industries and the economy illustrates how out of touch this administration is regarding the symbiotic relationship between legal immigration and the economy.“
Charles Kuck, managing partner of Kuck Baxter Immigration LLC said, “The days when the federal government blatantly ignores the law in its rule-making are over. US universities, employers, and healthcare systems can no longer stand by and watch while the US immigration system is dismantled by a nativist administration and in contravention of federal law.”
Greg Siskind, founding partner of Siskind Susser PC noted, “Aside from the blatantly unlawful way the Department of Labour dropped this rule on the economy, its basic premise is also wholly incorrect. The workers impacted are in occupations with extraordinarily low unemployment. And as we show in the complaint, these outstanding immigrants are doing critical work benefiting everyday Americans, whether it is providing critical research to cure disease, making our country globally competitive, providing medical and dental care to rural Americans, or caring for our country’s senior citizens.”

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