Recent H-1B Restrictions Overturned by Federal Court

Harris Beach PLLC

On December 1, 2020, the U.S. District Court for the Northern District of California issued a decision overturning two recent Interim Final Rules promulgated by the U.S. Department of Labor (DOL) and U.S. Department of Homeland Security (DHS). The DOL’s Interim Final Rule, which took effect on October 8, significantly increased the prevailing wage requirements that U.S. employers must pay to many H-1B workers, essentially making it impossible for many employers to afford to hire/employ workers on H-1B visas. The DHS’s Interim Final Rule, which was set to take effect on December 7, included several provisions in an attempt to further restrict eligibility for H-1B visas, including narrowing the definition of “specialty occupation” to require that the beneficiary’s degree be “directly related” to the offered position, tightening USCIS’s evaluations of an “employer-employee relationship,” and limiting the validity of H-1B petitions involving off-site placements to one year.

In yesterday’s decision, the court granted summary judgment to the plaintiffs, who were challenging both the substantive legality of these new H-1B restrictions as well as the appropriateness of the procedure by which the government agencies implemented the new rules. The court was unconvinced by the agencies’ use of the “good cause” exception to the Administrative Procedures Act, by which the government sought to promulgate these rules without offering the public the required notice and opportunity to comment before the rules were imposed.

With the prevailing wage increases now overturned, it is expected that further guidance will be forthcoming from the Department of Labor to reinstate the previous prevailing wage levels/amounts that had been in place up until October 7. The immigration attorneys at Harris Beach will be closely monitoring how this latest decision is implemented

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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