The Big Story: Courts deal blows to White House policies limiting foreign-born talent. Two court rulings this week struck serious blows to the Trump administration’s efforts to restrict legal immigration and limit U.S. companies’ access to foreign-born talent. But while the incoming Biden administration is likely to reverse course on many of President Donald Trump’s immigration policies, entrepreneurs and U.S. tech companies remain concerned about the White House’s ongoing efforts to clamp down on visa programs for high-skilled workers—like H-1B visas—that are vital to the U.S. tech sector.
On Tuesday, a federal judge in San Francisco struck down new visa rules from the departments of Labor and Homeland Security that narrowed eligibility requirements for high-skilled visas and required U.S. businesses to pay H-1B visa holders significantly higher wages. If implemented, the rules would impact over one-third of all H-1B petitions and would affect companies looking to hire talent across multiple employment levels. In its justification for issuing the rules, the Department of Homeland Security wrongfully cited the ongoing pandemic as a necessitating factor for the policy changes. Engine previously joined an amicus brief in support of the challenge to the H-1B rules. Also this week, the Ninth Circuit Court of Appeals ruled against the Trump administration’s “public charge” rule—which critics contend is a “wealth test” for immigrants seeking legal status—on the grounds that the rule causes financial harm to states and has a chilling effect on immigrants seeking medical care.
The startup community and tech companies have long expressed concern that the Trump administration’s efforts to restrict H-1B visas and curtail legal immigration will decrease U.S. innovation by forcing high-skilled, foreign-born workers to look elsewhere for tech-related opportunities. H-1B visa holders and other visa recipients help keep the U.S. at the forefront of global innovation, and limiting tech companies’ access to these workers will only compound the economic hardship caused by the coronavirus pandemic. And while this week’s dual court rulings are a positive development, Congress and other policymakers still need to fully embrace the importance of high-skilled talent to the country’s entrepreneurial community. As we noted in a letter to congressional leaders last month, “[i]f policymakers are truly dedicated to lifting up the American workforce, they will work to preserve and grow the H-1B visa program, so that the needs of American companies are met, new jobs are created, and new ideas can flourish.”
Policy Roundup:
Despite veto threat, Congress is not likely to include Section 230 repeal in NDAA. President Donald Trump this week threatened to veto the fiscal year 2021 National Defense Authorization Act (NDAA)—a $1 trillion annual defense bill—if Congress does not include a repeal of Section 230 in the legislation. Trump and some Republican lawmakers have falsely claimed in recent months that the bedrock Internet law lets big tech companies “censor” conservative users online, but any changes to Section 230 are likely to have an outsized impact on startups and other small tech companies that also rely on the law’s liability limitations in order to host and moderate user-generated content. Despite Trump’s threat to veto the NDAA, however, policymakers from both sides of the aisle are planning to vote on a final version of the bill that does not include a Section 230 repeal.
Simington FCC nomination moves forward. The Senate Commerce Committee voted along party lines to advance the nomination of Nathan Simington to the Federal Communications Commission. Senate Majority Leader Mitch McConnell (R-Ky.) is planning a floor vote on Simington’s nomination as soon as next week. While a senior adviser with the National Telecommunications and Information Administration, Simington helped craft the petition asking the FCC to reevaluate Section 230 as directed by Trump's May executive order on “preventing online censorship,” and also reportedly pushed Fox News host Laura Ingraham to support President Trump’s efforts to repeal Section 230 over the summer.
Engine weighs in at Supreme Court and USPTO in support of patent quality and patent review processes. This week, Engine submitted an amicus brief and public comments arguing in favor of legal and policy decisions that would support patent quality, and preserve the ability of startups and small businesses to more affordably challenge low-quality patents. Engine joined the Electronic Frontier Foundation in an amicus brief asking the U.S. Supreme Court to reconsider a Federal Circuit decision that found that administrative patent judges were unconstitutionally appointed. In our brief, we argue that, by correctly understanding the role these administrative judges play, the Supreme Court can resolve the problem and preserve important patent review processes. Engine also submitted comments to the U.S. Patent and Trademark Office this week in response to an agency request concerning inter partes review (IPR). IPR makes it easier for startups and other small businesses to push back against frivolous lawsuits brought by patent trolls, and our comments argue against changes that would weaken the patent review process. You can read our full comments here.
Supreme Court weighs scope of sweeping cybercrime law. The U.S. Supreme Court this week heard oral argument in Van Buren v. United States, a case regarding the scope of the 1986 Computer Fraud and Abuse Act (CFAA). The law is the nation’s major cybercrime statute and includes a prohibition on unauthorized computer access, but justices expressed concern that the law was too broad and could criminalize acts as mundane as checking social media while at work. Engine and several tech organizations joined an amicus brief earlier this year that called on the Supreme Court to construe CFAA narrowly, since an overbroad interpretation of the draconian law is likely to harm startups, suppress competition, and make it more difficult for security researchers to conduct their work online.
Startup Roundup:
#StartupsEverywhere: Las Vegas, Nevada. Door to Door Health is an early-stage healthcare startup that’s using technology integrated with in-person medical care to improve primary medical care services for lower-income households. We spoke with David Crane—the CEO of Door to Door Health—to learn more about his startup’s mission, how technology can be used to improve healthcare, and the steps that policymakers can take to incentivize more private investments in startups.
#EngineStartupSpotlight. Each Wednesday, Engine is spotlighting a different startup on social media to highlight the policy issues affecting their business. Reach out to us here to be featured.
