On Tuesday, December 1, 2020, the U.S. District Court for the Northern District of California set aside both the U.S. Department of Homeland Security’s (DHS) Strengthening the H–1B Nonimmigrant Visa Classification Program interim final rule (“H-1B rule”) and U.S. Department of Labor’s (DOL) Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States interim final rule (“Wage Rule”).
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The COVID-19 pandemic has wreaked havoc on the nation’s health, and millions of Americans have been impacted financially by restrictions imposed on businesses, large and small, during the pandemic; the consequences of those restrictions has been a fiscal calamity for many individuals. However, “[t]he history of the United States is in part made of the stories, talents, and lasting contributions of those who crossed oceans and deserts to come here. The National Government has significant power to regulate immigration. With power comes responsibility, and the sound exercise of national power over immigration depends on the Nation’s meeting its responsibility to base its laws on a political will informed by searching, thoughtful, rational civic discourse.” Arizona v. United States, 567 U.S. 387, 416 (2012).
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Defendants failed to show there was good cause to dispense with the rational and thoughtful discourse that is provided by the [Administrative Procedure Act]’s notice and comment requirements.
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Jeffrey S. White, United States District Judge
BACKGROUND:
- On October 8, 2020, DOL published its Wage Rule, which significantly restructured DOL’s computation of wage levels used by employers when filing nonimmigrant petitions under the H-1B, H-1B1, and E-3 nonimmigrant programs as well as PERM labor certification applications. The Wage Rule took effect immediately upon publication.
- On October 8, 2020, DHS also published its H-1B Rule, which includes a narrow definition of and changes to the standards for a “Specialty Occupation,” among other things. The H-1B Rule is scheduled to take effect on December 7, 2020, 60 days from publication.
- On October 19, 2020, this lawsuit (Chamber of Commerce, et al., v. DHS, et al., 10/19/20) was filed against both DOL and DHS by the U.S. Chamber of Commerce, along with the National Association of Manufacturers, the Presidents’ Alliance on Higher Education and Immigration, and other organizations and universities that include Stanford, Cornell, Cal Tech and the University of Southern California. Another 45 or so companies signed amicus briefs in support of this lawsuit. These include Google, Apple, Twitter, Microsoft, Spotify, Dropbox, Hewlett Packard, VMWare, LinkedIn, TechNet, Harvard University, MIT, and Facebook.
- The lawsuit states:
These rules are extraordinary: If left unchecked, they would sever the employment relationship of hundreds of thousands of existing employees in the United States, and they would virtually foreclose the hiring of new individuals via the H-1B program. They would also gut EB-2 and EB-3 immigrant visas, which provide for employment-based permanent residence in the United States.
The U.S. Citizenship and Immigration Services (USCIS) has not made any announcements yet, but it looks like the H-1B Rule will not be able to go into effect on Monday, December 7, 2020 — its scheduled effective date.
There are currently other lawsuits that have been filed against DOL challenging the new prevailing rules. One was brought in the U.S. District Court (District of New Jersey) on behalf of a membership organization of IT companies and seven-member companies – including Precision Technologies, IFlowsoft Solutions, Smart Works, Dots Technologies, Zenith Services, Kolla Soft, NAM Info and IT Alliance (ITServe Alliance, Inc., et al. v. Scalia, et al., 10/16/20). Another was brought in the U.S. District Court (District of Columbia) by 17 organizations, mostly universities including Purdue University, Indiana University, the University of Michigan (Purdue, et. al., v. Scalia, et. al., 10/19/20). We are still waiting for news on these cases.
Stay tuned for updates!
