The H-1B visa program could face more legal challenges and pressure for congressional reform following a Supreme Court ruling that limits federal agencies' regulatory power.
The H-1B visa program could face more legal challenges from employers disputing denials, following a recent U.S. Supreme Court ruling that restricts federal power and increases pressure on Congress to reform the program.
After he took office in 2017, then-President Donald Trump's decision to crack down on the H-1B visa program resulted in 1 in 5 visa denials, representing a dramatic increase. This rise in denials was largely due to federal agencies' broad powers to interpret regulations, which stems from a 1984 ruling known as the Chevron v. Natural Resources Defense Council decision.
However, in a recent 6-3 ruling, the Supreme Court has overturned Chevron, a decision that could change federal agencies' broad authority to interpret and set regulations. This landmark decision has significant implications for immigration policy, particularly the H-1B visa program. With this ruling, courts are no longer obligated to defer to interpretations of the law by federal agencies -- including U.S. Citizenship and Immigration Services, which administers the H-1B program. The Chevron case gave judicial deference to federal agencies in their interpretation of unclear laws.
Carl Shusterman, a Los Angeles-based immigration attorney, said the recent decision to overturn Chevron is "a big positive" for immigration because federal agencies write restrictive regulations that don't comply with the law. He added, "It'll just make it a lot easier to challenge these immigration denials," although he also remains critical of the Supreme Court's decision for its potential impact on areas such as environmental rules.
Indeed, the ruling was quickly applied in an H-1B-related lawsuit filed in 2015 by Save Jobs USA. This group, which consists of IT workers who lost their jobs at Southern California Edison, claimed that IT services firms outsourced their positions and required them to train H-1B visa-holding replacements. The lawsuit challenges the U.S. Department of Homeland Security's decision to grant work authorization to the spouses of H-1B workers under the H-4 visa, alleging that the government exceeded its authority.
Save Jobs USA lost in a district court ruling but is appealing. This month, the group cited the Chevron decision, arguing that the DHS had no authority to approve the work authorization. In response, Immigration Voice, a pro-immigration group, filed a court response, arguing the Supreme Court's opinion in Loper Bright Enterprises vs. Raimondo -- which led to the overturning of the Chevron deference -- is irrelevant to this case because the district court never relied on the Chevron precedent.
While the Chevron decision could make it harder for future administrations to unilaterally tighten H-1B visa regulations, it also introduces new complexities into the immigration system. As courts take on a more significant role in interpreting immigration laws, the operation of the H-1B visa program could see more challenges, especially regarding individual denials.
A challenge to H-1B visa regs
The U.S. government issues 85,000 new H-1B visas annually through a lottery program. While the Chevron decision doesn't restrict the ability of agencies to issue regulations, it changes how these regulations can be challenged.
It is really hard to say whether this is a positive or negative.
Sharvari Dalal-DheiniDirector of government relations, American Immigration Lawyers Association
Sharvari Dalal-Dheini, director of government relations at the American Immigration Lawyers Association, said that when there is a challenge, the interpretation of the law will be left up to the courts.
"It is really hard to say whether this is a positive or negative," Dalal-Dheini said of the Chevron decision. It's a positive for employers that are challenging individual denials, but it's a negative if the White House wants to improve the program. "Their ability to improve their program will be under much higher scrutiny," she added.
The Chevron decision will put more pressure on the White House to seek new laws in Congress. Agencies will no longer be able to interpret the law as time passes and immigration reforms are needed, Dalal-Dheini said.
The people who will benefit the most from the Chevron decision are those who bring specific claims over denials, she said.
One area that could see legal challenges is around specialty occupation denials, which require employers to prove the direct relevance of a college degree to a job. The problem is that hundreds of courts might be making decisions on these rules, meaning interpretation can vary, Dalal-Dheini said.
Patrick Thibodeau is an editor at large for TechTarget Editorial who covers HCM and ERP technologies. He's worked for more than two decades as an enterprise IT reporter.
