October 2020 DOL And DHS Interim Final Rules Set Aside

Tonkon Torp LLP

Tonkon Torp LLP

On December 1, 2020, the U.S. District Court for the Northern District of California set aside the Interim Final Rules issued in October 2020 by the U.S. Department of Labor (DOL) and the U.S. Department of Homeland Security (DHS).

The DOL rule raised prevailing wage calculations, impacting temporary visa (H-1B, H-1B1, E-3) and permanent residence programs that have a prevailing wage requirement. The DHS rule primarily revised the definition of specialty occupation for certain temporary visas, including the H-1B, but also included other changes, such as to government site visits. Further detail regarding the Interim Final Rules is provided in our previous alerts here and here.

The DOL regulation impacting prevailing wages was effective immediately upon publication on October 8, 2020. The DHS regulation was set to take effect on December 7. The District Court found that the government failed to demonstrate proper cause to bypass the required public notice and comment period when it published the regulations.

The Trump administration may try to take additional action before January 20, 2021. For now, this case represents a welcome reprieve for affected employers and foreign national workers. DOL is reportedly working on adjusting its systems to accommodate the return to prior wage calculations. Hopefully new Labor Condition Applications (supporting the H-1B, H-1B1, and E-3 programs) can be filed, and prevailing wage determinations issued by DOL, using the prior prevailing wage levels in the very near future.

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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