On December 1, 2020, a U.S. Federal District Court in California set aside the two Interim Final Rules announced in October by the U.S. Department of Labor (“DOL”) and the Department of Homeland Security (“DHS”). The DOL rule, which took effect on October 8, 2020, significantly increased prevailing wage levels for H-1B, H-1B1 and E-3 programs and the permanent labor certification (PERM) program. The DHS rule was scheduled to take effect on December 7, 2020 and would have placed further restrictions on the H-1B program, including in particular narrowing the definition of “specialty occupation.” The Court Order, effective immediately, found that the agencies did not show good cause in bypassing the notice and comment period, required by the Administrative Procedures Act.
It remains unclear how DOL will comply with the Order, as the higher prevailing wage levels took effect in October. The DHS rule will not go into effect as planned on December 7.
Seyfarth will continue to monitor the situation and its impact to employers and their foreign national workers and provide updates as appropriate.