Federal Court Halts New Rules for Certain Employment-Based Immigration Cases

By: Brittany Milliasseau

On December 1, 2020, a U.S. District Court in California set aside two new Department of Labor (DOL) and Department of Homeland Security (DHS) regulations that made significant changes to certain employment-based immigration cases.  In October 2020, DHS issued an interim final rule titled Strengthening the H-1B Nonimmigrant Visa Classification Program, which imposed new requirements on H-1B petitions.  At the same time, DOL issued an interim final rule titled Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States.  That interim final rule amended the computation of prevailing wage levels for H-1B, E-3, and PERM labor certification cases, resulting in higher prevailing wages for all occupations.

In response, several organizations filed a lawsuit challenging and asking the Court to set aside the new rules, arguing that DHS and DOL issued the rules without following the required procedure.  DHS and DOL argued that they had good cause to issue the rules without notice and comment due to the COVID-19 pandemic and the resulting economic consequences.  The Court found that DOL and DHS failed to show there was good cause to “dispense with the rational and thoughtful discourse” that is provided by notice and comment requirements.

While this is a major victory for many foreign nationals, their employers, and immigration advocates, there is still much uncertainty as it is possible that the government may quickly file an appeal challenging the Court’s decision.  There is also uncertainty as to how the government will handle those cases already adjudicated under the new rules.  Due to the uncertainty and continuous changes, it is important to consult with a knowledgeable immigration attorney to understand how your case may be impacted.