December 2, 2020
Yesterday, a U.S. District Court Judge set aside two new immigration rules, which had been previously announced by the Department of Homeland Security (DHS), and Department of Labor (DOL). The court’s action has halted further implementation of these rules, on an immediate basis.
- Background: The new federal regulations were introduced by the Trump administration in October, intended to place severe restrictions on the eligibility criteria for the H-1B nonimmigrant category, and to increase minimum wage requirements for the H-1B, H-1B1, E-3 and PERM Alien Labor Certification programs. Both sets of regulations were published by the federal government without the normal notice and comment period, required by the Administrative Procedure Act.
- New Regulations: The new DHS regulations were intended to take effect on December 6, 2020, and would have redefined the “specialty occupation” requirements of the H-1B program. The new DOL regulations took effect immediately on October 8, 2020, and introduced a methodology to significantly increase the wage levels used in determining what an employer would be required to pay certain foreign-national employees.
- Court Order Halting the Regulations: DOL must cease enforcement of the new wage levels, and DHS cannot implement the new H-1B specialty occupation criteria, as planned. In issuing the order, the court has stated that the administration had not provided a compelling reason to introduce the rules in October, without the usual notice and comment period that is required during federal rulemaking.
- Next Steps: The government is likely to appeal, but in the interim, DHS and DOL are expected to issue guidance as to how the agencies intend to comply with the court order.
We are continue to monitor this continuing litigation, and will provide future updates as the situation evolves. Please contact me or another member of our Immigration Practice Team if you have any questions, or would otherwise like to discuss.