H-1B Rules from DOL and DHS Set Aside!

On December 1, 2020, the court in Chamber of Commerce v. DHS set aside the DOL regulations and the DHS regulations that were issued without the notice and comment period typically required by the Administrative Procedures Act. We are thrilled about this decision and what it means for our clients. Read on for a summary of the issues at hand and possible next steps!

What was this lawsuit about?

On October 8, 2020, the Department of Labor and Department of Homeland Security each announced rules that significantly affect the H-1B program. Specifically, the DOL rule changes the way in which the DOL calculates the prevailing wage rates. This affects both the H-1B program and the PERM labor certification program. The DHS rule makes several significant changes to the H-1B program including re-defining the term specialty occupation, changing the requirements for the employer-employee relationship, and limiting H-1B validity period to one year for workers placed at third-party client sites.

Both rules were implemented without the notice and comment period that is usually required by the Administrative Procedures Act. In this case, the agencies implemented the new regulations without the notice and comment period by invoking the APA’s good cause exception. The question for the court in this particular case was whether the agencies have shown that the impact of the COVID-19 pandemic justified skipping the notice and comment period. Ultimately, the US District Court in California found that the agencies did not show good cause for the good cause exception to skip the notice and comment period. Therefore the Court set aside the rules.

What happens next?

While this is welcome news for us as immigration professionals, the next steps are not yet clear.

  1. It is possible that the government would try to appeal the Court’s decision.
  2. Or it is possible that the government would try to implement new rules following the APA notice and comment period requirements.
  3. At this time, we do not have instructions as to how this decision will be implemented by the agencies, especially the DOL. That is, it’s not clear what will happen with prevailing wage determinations that were issued while the higher wage structure was in place, and it’s not clear as of right now whether DOL will certify LCAs (labor condition applications) with the old wage structure.

We will continue to keep our clients informed about further developments on these rules and the implementation of the court order. In the meantime, we are excited about this decision, and we’re optimistic about other positive changes coming with the new administration!

If you need help navigating this process with confidence, please contact us today to get the process underway! We are immigration lawyers in Richmond, VA but we serve clients throughout the US and around the world. You can call us at 804-396-3412 or send us an email to info@sumnerimmigration.com. We look forward to hearing from you.

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