Judge Strikes Down Rules Restricting Visas for High-Skilled Foreign Workers

Gibney Anthony & Flaherty, LLP

A federal judge in California struck down two Trump administration rules that substantially altered the H-1B visa program for temporary professional workers and  increased wage obligations for businesses employing certain temporary workers.

The Department of Labor (DOL) rule  took effect October 8, 2020, and imposed significantly  higher wage requirements on businesses that employ H-1B, H-1B1 and E-3 workers, and businesses that file PERM labor certifications for foreign workers as part of permanent resident sponsorship.

The Department of Homeland Security (DHS) rule narrowed the definition of a specialty occupation to limit who qualifies for the visa, imposed restrictions on employers that place H-1B workers at end-client sites, and expanded USCIS site visit authority.  The  DHS rule was set to take effect on December 7, 2020.  Additional information about the rules is available here.|

In striking down the rules, the court found that the Trump administration violated the Administrative Procedures Act (APA) by implementing the rules without following the APA’s public notice and comment procedures.  The court rejected the administration’s argument that the impact of  COVID-19  on domestic unemployment justified  fast-tracking  the rules, observing that the administration had been considering the rules since 2017.

What’s Next?

The court’s summary judgment order invalidating the rules  is effective immediately.  However, the administration may seek to expedite an appeal of the decision, leaving employers in some suspense as to the ultimate outcome.

It is not yet known how the ruling will impact prevailing wage determinations issued by DOL while its rule was in effect, nor whether DOL will immediately revert to the prevailing wage data utilized prior to issuance of the rule, now that the rule is invalidated.  Gibney is closely monitoring the matter and working with employers to strategize cases in light of the decision.

The case is Chamber of Commerce of the United State of America et al v. United States Department of Homeland Security et al, case number 4:20-cv-07331, in the U.S. District Court for the Northern District of California.

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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