Third Judge Rules Against DOL’s H-1B Visa Wage Increases

Butler Snow LLP

Butler Snow LLP

The third ruling against the Trump administration’s H-1B wage rule is in, and once again, the policy that would raise required salaries for foreign workers on high-skilled visas has been struck down. Purdue University, et al., v. Scalia, et al., Civ. Actin No. 20-3006 (2020).  The lawsuit was filed in federal court in the District of Columbia by 17 individual and organizational plaintiff’s including Purdue University and the American Immigration Lawyers Association. 

On Monday, Dec. 14, U.S. District Judge Emmet G. Sullivan found that the Department of Labor’s decision to bypass the public feedback component before implementing major policies was not justified under the good cause exception to the Administrative Procedures Act. Judge Sullivan also found that the DOL had not provided enough evidence for its claim that U.S. workers would be disadvantaged by these foreign workers on the high-skilled visas. The unemployment data the agency provided was outdated and did not highlight the specific data which would have shown a low unemployment rate in the computer occupations, where the majority of H-1B visas holders are classified.

As we shared in an earlier article, the policy was previously challenged in California and New Jersey and both federal judges struck it down. This ruling from Judge Sullivan, however, went a step further. He ordered the DOL to automatically reissue Prevailing Wage Determinations that were erroneously issued under the now-rejected wage scale, which would have significantly increased required wage levels for H-1B visa applicants and employer-sponsored green cards. This is significant because the DOL is currently taking approximately four months to issue Prevailing Wage Determinations.   Without injunctive relief, employers would not be able to process green card applications in a timely manner.

With this latest ruling from Judge Sullivan, the DOL will have to reissue the policy as soon as possible to ensure it takes effect at least 30 days before the inauguration of President-Elect Biden.

Will the DOL try to reissue the policy? Presumably it could if issued before December 20, as this would be 30 days before the inauguration.  We will continue to monitor the ongoing situation and provide updates on the Workplace Blog as they come available.

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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