Federal Courts Reverse And Invalidate Administration Policies Concerning Deferred Action For Childhood Arrivals And The Definition Of H-1B Specialty Occupation And Related Wage Levels

Tarter Krinsky & Drogin LLP

On Friday, December 4, 2020, a federal judge ordered the U.S. Department of Homeland Security (DHS) to reopen the Deferred Action for Childhood Arrivals (DACA) program to new applicants for the first time since 2017. This ruling follows other decisions affecting DACA applicants including a November 2020 federal court decision which found that DHS violated the Homeland Security Act of 2002 by suspending DACA.

It is estimated that there are approximately one million DACA applicants in the country and approximately 300,000 potential DACA applicants who were unable to participate in the program due to changes made by the administration in 2017. President-elect Biden has stated that he will, as one of his first acts in office, institute an Executive Order furnishing DACA applicants with a path to U.S. permanent residence and citizenship.

H-1B Definition of Specialty Occupation and Prevailing Wages Revert to Original Versions After Court Challenge

On December 1, 2020, the U.S. District Court for the Northern District of California upheld a motion brought by the U.S. Chamber of Commerce challenging the government’s new definition of “specialty occupation” and wage levels in the H-1B visa context. The Chamber, as plaintiff is in this matter, claimed that the government failed to demonstrate good cause for not following the normal notice and comment procedures required for immigration regulations.

The decision by the court is a huge success for U.S. employers and their foreign national populations, as the wage levels and new definition of specialty occupation would have heavily restricted the ability of companies to hire entry-level professionals and likely would have required that it is no longer sufficient for an employer to indicate that a degree is ”normally,’’ “commonly” or “usually” required in order to establish that a position is a specialty occupation requiring a degree.

The USCIS definition would have required that employers establish that a bachelor’s degree in a specific field would “always” be required in order to qualify for H-1B status. This regulation would have severely constricted eligibility for the visa category and the impact on newly created positions, such as “data scientist” and others which haven’t even been categorized by USCIS or the U.S. Department of Labor and would suffer with these heavily tightened definitions.

The government argued that the COVID-19 pandemic and the economic impact on unemployment rates justified bypassing federal notice and comment periods. However, Judge Jeffrey Steven White, in his opinion, condemned the government for its actions and restored wage levels and the definition of specialty (i.e., professional) occupations to their original definitions.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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