December 14 Update: Third Federal Judge Rules Against DOL H-1B Rule
On December 14, 2020, a federal judge in Washington, D.C. ruled that the Department of Labor (DOL) did not follow proper rulemaking procedures when it issued a rule in October 2020 on H-1B wage requirements.
U.S. District Judge Emmet G. Sullivan concurred with federal judges in California and New Jersey who ruled earlier in December 2020 that the DOL did not follow proper rulemaking procedures when it implemented an interim final rule on October 8, 2020 raising minimum wage requirements for permanent labor certifications (PERM) and H-1B, H-1B1, and E-3 visa categories.
Both courts determined that the agency bypassed mandatory rulemaking procedures in accordance with the Administrative Procedure Act (APA) when it issued the interim final rule without the requisite 30-day public and public comment period. Echoing the court orders from the other two federal judges, Judge Sullivan instructed DOL to reissue prevailing wage determinations (PWDs) that were issued after the agency implemented its interim final rule on October 8, 2020.
The prevailing wage rule remains suspended following the latest court decision. Envoy, Global Immigration Associates (GIA) and Corporate Immigration Partners (CIP) will provide updates as they become available regarding ongoing litigation for the DOL rule.
- On December 1, 2020, a U.S. District Court in California struck down H-1B visa restrictions
- The case concerns rules issued immediately by DOL and DHS without a 30-day public notice and comment period
- The court ruled that the DOL and DHS violated APA requirements upon implementing their interim final rules for the H-1B program
- The ruling prevents changes to the H-1B program regarding eligibility requirements and minimum salary requirements for H-1B beneficiaries
On December 1, 2020, the U.S. District Court for the Northern District of California decided that the interim rules for the H-1B program issued by the Department of Labor (DOL) and Department of Homeland Security (DHS) were invalid. The court granted Plaintiffs’ (U.S. Chamber of Commerce) motion for a partial summary judgment and denied Defendants’ (U.S. Department of Homeland Security) cross-motion.
What are the Changes?
The District Court’s order concerns the implementation of rules issued by the two federal agencies to make changes to the H-1B program. DOL and DHS asserted that their interim rules regarding changes to the H-1B visa program were necessary to protect U.S. workers during the COVID-19 pandemic. Both agencies implemented their rules on October 8, 2020. The DOL’s rule was effective immediately, and the DHS’s rule was scheduled to take effect on December 7, 2020. However, the District Court found that the agencies unlawfully bypassed legal procedural requirements by issuing their interim final rules without a 30-day public notice and comment period. The agencies’ rules tightened eligibility requirements and increased minimum salary requirements for skilled H-1B beneficiaries.
Both agencies invoked the good cause exception in the Administrative Procedure Act (APA), which allows government agencies to bypass the normal 30-day waiting period that is otherwise mandated by the APA before a rule can take effect. The agencies claimed COVID-19 as their reason for invoking the good cause exception and issuing the rules on an emergency basis. The court concluded that although COVID-19 is a national emergency, the statistics provided by both agencies were not sufficient to invoke the good cause exception. Additionally, the District Court found that the agencies did not provide sufficient evidence of the pandemic’s detrimental impact on the U.S. workforce to invoke the good cause exception and bypass the public notice and comment period before issuing their rules. While the agencies claimed that their rules were necessary to protect jobs for U.S. workers, the court found that statistics show unemployment rates for H-1B positions were at 4.8% with jobs still available in the market. Furthermore, the Trump administration had been discussing these alleged issues since 2017. Consequently, the court concluded that the agencies’ reasoning was insufficient to justify implementing their new rules on an emergent basis through the good cause exception.
What Should Employers and Applicants Know?
The court’s order follows extensive litigation surrounding the H-1B visa program. While there is still time to promulgate the rules, that is not likely to happen. As of December 1st, the court’s decision prevents the Trump administration from tightening eligibility requirements and raising minimum salary requirements for foreign workers on high-skilled work visas.
Envoy is pleased to provide you this information, which was prepared in collaboration with Sara Herbek, who is the Managing Partner at Global Immigration Associates, P.C. (www.giafirm.com), Envoy’s affiliated law firm.
Content in this publication is not intended as legal advice, nor should it be relied on as such. For additional information on the issues discussed, consult an Envoy-affiliated attorney or another qualified professional.
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