A challenge brought by the U.S. Chamber of Commerce to the new H-1B wage levels and the new definition of “Specialty Occupation” was upheld by the United States District Court for the Northern District of California on December 1, 2020. The plaintiff’s Summary Judgement motion was granted when the Court held that the government failed to demonstrate good cause for not following the normal notice and comment procedures required for immigration regulations. The government’s failure to follow the proper rulemaking procedures makes the new rules invalid and requires them to be rescinded by the government.
This is a huge win for foreign national employees and their employers, as the now rescinded Department of Labor (DOL) rule wreaked havoc with H-1B and PERM wage levels to the point where employers, in many cases, were not able to file the necessary wage certifications due to a lack of wage data or wage data that was totally out of sync with industry wage levels. But, we are not quite there yet, as the DOL is yet to restore the prior wage levels to its electronic filing systems, although DOL officials report that the the changes are underway. Once these systems are updated, it is recommended the employers resubmit any Prevailing Wage requests that were submitted after October 7, 2020. This will ensure that the correct wage levels are used by the DOL when it issues the Prevailing Wage determinations.
The DHS “Specialty Occupation” rule, set to go into effect on December 7, was also rescinded. It would have changed the definition of “Specialty Occupation” to clarify that it is no longer sufficient for employers to show that a degree is “normally,” “commonly,” or “usually” required in order to establish that a position is a specialty occupation. Rather, the new rule would have required that employers show that a degree is “always” required in order to qualify for H-1B status. This new standard would have been a nightmare scenario for many common H-1B applications, such as Data and Business Analysts as well as other occupations where several distinct fields of study are relevant.
In District Court, DOL and DHS argued that the COVID-19 pandemic and the related economic impacts on unemployment rates justified bypasing the traditional notice and comment period of the Administrative Procedures Act. However, the Judge held that the good cause exception should be narrow and that in this case it did not apply. “The evidence regarding unemployment rates most relevant to H-1B visa applications also does not show a ‘dire’ emergency.”
Thank goodness for federal judges with commonsense and respect for the contributions that highly skilled immigrants bring to the U.S. workforce every day.