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A federal judge threw out two rules by the Trump administration that limited the number of visas that are made available to skilled foreign workers.

The Tuesday ruling from U.S. District Judge Jeffrey White, dismisses changes the administration announced in October 2020 to the H-1B visa program, which included salary requirements on firms that employed skilled workers from overseas and placed new limits on specialty occupations. Officials defended the move as necessary because of the number of jobs lost during the coronavirus pandemic and estimated that roughly a third of H-1B visa applications would be denied.

White ruled that the administration failed to properly follow transparency procedures and that its claims that the changes were an emergency response to the pandemic’s economic fallout were unsubstantiated since the October rule was implemented after months of speculation.

“The COVID-19 pandemic is an event beyond defendants’ control, yet it was within defendants’ control to take action earlier than they did,” White wrote.

“Defendants failed to show there was good cause to dispense with the rational and thoughtful discourse that is provided by the [Administrative Procedure Act’s] notice and comment requirements,” White concluded.

The U.S. Chamber of Commerce, along with several universities, sued the current administration, arguing that there was inadequate time for the public to comment on the new rules and that the salary changes, which would essentially require companies to significantly raise what they pay foreign workers, would force the firing of many employees.

The rules were as follows:

  • DOL’s rule, effective October 8, 2020, raised the prevailing wage requirement for each of the four wage levels for permanent and temporary employment-based visas requiring a Prevailing Wage Determination (PWD) or Labor Condition Application (LCA). Under this rule, the minimum entry-level wage for H-1B, H-1B1, E-3 and I-140 petitions was required to be at the 45th percentile of surveyed salaries for a particular occupation. This rule basically had raised minimum wages for H-1b workers in most categories to a level making it impracticable in most cases to hire a new grad because the wages did not reflect entry level wages. We believe that the rule is counter to the spirit of the H-1b regulations and we applaud the judge’s decision although it is not final and did not seek to judge the rule on its merits.
  • DHS’ rule, which had not taken effect yet, changed the definition of, and adjudicative standards for the terms “Specialty Occupation” and “Employer-Employee Relationship.” These changes, which were to be effective December 7, 2020, would have made the requirements for obtaining an H-1B visa much stricter.

What This Means:

DOL’s new prevailing wage rule had been in effect since October 8, 2020 and will have to be rolled back to the rules that were in effect prior to October 8.  As of December 1, DOL (at https://www.flcdatacenter.com/) still provides prevailing wage data in accordance with the new (incorrect) Prevailing Wage Rule.  We expect that it will take a few days for DOL to roll back to the prior correct prevailing wage data.

DHS’ new rule on H-1B visas had not yet taken effect.

What Happens Next:

The current administration will most likely appeal this decision and request that these rules be reinstated.  SW Law Group will continue to monitor this, and all other immigration issues, and continue to post updates as appropriate.