On October 8, 2020, the Departments of Labor and Homeland Security issued interim final rules changing the regulations governing the H-1B visa program.  These rules sought to restrict access to H-1B visas by redefining the statutory language of the Immigration and Nationality Act narrowing the types of jobs that would qualify for the visa, and by raising the wages of the commonly accepted prevailing wage data source by 35%.  DHS and DOL circumvented the Administrative Procedure Act’s notice and comment rulemaking requirements by finding that the economic harm to the labor market caused by the COVID-19 pandemic constituted “good cause” to issue these rules as interim final rules.  The DOL’s rules took effect on publication.  The DHS’ rule were to take effect on December 7, 2020. 

Shortly after publication, The Chamber of Commerce of the United States of America and other interested parties filed suit seeking to have these rules set aside.  On December 1, 2020, Judge Jeffrey S. White of the US District Court for the Northern District of California granted partial summary judgment to the plaintiffs.  The court held that the economic harm to the labor market did not constitute good cause to forgo notice and comment rulemaking, and struck down the rule on purely procedural grounds. 

While it is unclear if the government will appeal this decision or if the Circuit Court of Appeal will stay the enforcement of the District Court’s judgement, it is clear that with less than sixty days remaining, the Trump Administration cannot cure this defect by publication of the rule.  Restricting immigration, both lawful and illegal, is a policy priority of the Trump Administration.  It is unlikely that the Biden Administration will enact or continue to defend a restrictive immigration regulation issued by their predecessor.