Suits Challenge New Rules On H-1B And PERM Labor Certification Programs

Jackson Lewis P.C.
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Business groups, universities, and technology consulting firms have filed suits seeking to enjoin the new rules on H-1B and PERM labor certification programs issued by the Department of Homeland Security (DHS) and the Department of Labor (DOL) on October 8, 2020.

Those rules, both issued as Interim Final rules and without the usual notice and comment, could upend the H-1B and PERM labor certification programs by changing statutory definitions, targeting staffing and consulting firms with onerous requirements, and hiking required wages by 35% to 200%. To date, three separate lawsuits have been filed in federal district court, seeking to enjoin implementation of the new rules.

The complaint filed in California, Chamber of Commerce of the United States of America et al. v. the Departments of Homeland Security and Labor, et al., challenges both the Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States Rule and the Strengthening of the H-1B Nonimmigrant Visa Classification Rule.

The plaintiffs, which include the U.S. Chamber of Commerce, the National Association of Manufacturers, and a number of universities and associations, contend that the new rules will “substantially restrict, if not outright eliminate, the H-1B visa category.” Nonetheless, the government issued both rules without notice and comment rulemaking and without establishing “good cause,” in violation of the Administrative Procedures Act (APA). The plaintiffs’ additional arguments include:

  • An injunction is necessary to maintain employment-based immigration programs and preserve thousands of jobs that are essential to the economy;
  • COVID-19 is just a pretext for the adoption of these rules because both have been on the table since 2017 when the Trump Administration took office;
  • The new H-1B definitions are at odds with the relevant statutes;
  • There was no good cause for bypassing the usual notice and comment period, especially when the rules could cost employers as much as $200 billion;
  • The Administration’s contention that COVID-19 has created an unprecedented economic cataclysm that requires these interventions is contradicted by Trump’s tweets contending that the economy is booming;
  • There is no evidence these rules will protect U.S. workers because unemployment is low in high tech, the industry that uses the lion’s share of H-1B visas; and
  • The wages set by the DOL rule do not match reality and are just a poison pill meant to ruin the H-1B and PERM programs.

The Chamber plaintiffs further argue that the Administration once again has failed to adequately consider the reliance interests involved.

As of 2019, DHS estimated that there are 580,000 workers in H-1B status. Many of those have left their homes abroad, bought homes, and built families and lives in the United States in reliance on a stable immigration system that now could be turned upside down. Employers have built facilities and business strategies based on settled expectations about the U.S. immigration system.

The plaintiffs ask the court to enjoin implementation of both rules.

Jackson Lewis attorneys will follow these suits and provide updates as soon as they become available. The DOL Wage Rule has already gone into effect and, absent an injunction, the DHS H-1B Rule will go into effect on December 8, 2020.

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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