United States:
US District Court (NDC) Halts DHS/DOL H-1B Interim Rules
03 December 2020
Moodys Tax Law LLP
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To the relief of many seeking temporary employment in the US, US
employers, vital critical infrastructure-related industries,
immigration advocates, and immigration lawyers, on December 1,
2020, the US District Court for the Northern District of California
set aside the following interim rules:
In the District Court’s decision, the Court stated
that the interim rules were “promulgated in violation of 5
USC section 553(b),” and that DHS and DOL
“failed to show there was good cause to dispense with the
rational and thoughtful discourse that is provided by the APA’s
notice and comment requirements.” The case was filed by
US Chamber of Commerce, the National Association of Manufacturers
and other trade groups and universities and is likely to face a
speedy government appeal that could impact the decision’s
implementation.
The interim DHS rule, which was championed by the Trump
administration and published in the Federal Register on
October 8, 2020, significantly revised the regulatory definition
standards for “specialty occupation,” greatly narrowing
which beneficiaries and proffered H-1B positions are eligible for
the H-1B visa program, including disqualifying general discipline
degrees (business, engineering) and positions that require
education in one of several disciplines.
In turn, the interim DOL rule, which has drawn the most ire from
immigration advocates, immigration lawyers, and industry leaders,
dramatically restructured the prevailing wage system, including
significant changes to H-1B, E-3, H-1B1, and PERM programs with
entry-level wages increasing from the 17th percentile to
the 45th percentile of wages for the occupation and
geographic location.
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