{"id":2965,"date":"2020-12-02T17:18:38","date_gmt":"2020-12-03T00:18:38","guid":{"rendered":"https:\/\/swlgpc.com\/eng\/?p=2965"},"modified":"2020-12-02T17:18:38","modified_gmt":"2020-12-03T00:18:38","slug":"district-court-restrictions","status":"publish","type":"post","link":"https:\/\/www.swlgpc.com\/eng\/district-court-restrictions\/","title":{"rendered":"U.S. District Court Strikes Down H-1B Visa Restrictions"},"content":{"rendered":"<p>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.<\/p>\n<p>The Tuesday\u00a0<a href=\"https:\/\/www.courtlistener.com\/recap\/gov.uscourts.cand.367484\/gov.uscourts.cand.367484.73.0.pdf\">ruling<\/a>\u00a0from 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.<\/p>\n<p>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\u2019s economic fallout were unsubstantiated since the October rule was implemented after months of speculation.<\/p>\n<p>\u201cThe COVID-19 pandemic is an event beyond defendants\u2019 control, yet it was within defendants\u2019 control to take action earlier than they did,\u201d White wrote.<\/p>\n<p>\u201cDefendants failed to show there was good cause to dispense with the rational and thoughtful discourse that is provided by the [Administrative Procedure Act\u2019s] notice and comment requirements,\u201d White concluded.<\/p>\n<p>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.<\/p>\n<p>The rules were as follows:<\/p>\n<ul>\n<li>DOL\u2019s 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 45<sup>th<\/sup> 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\u2019s decision although it is not final and did not seek to judge the rule on its merits.<\/li>\n<li>DHS\u2019 rule, <strong>which had not taken effect yet<\/strong>, changed the definition of, and adjudicative standards for the terms \u201cSpecialty Occupation\u201d and \u201cEmployer-Employee Relationship.\u201d These changes, which were to be effective December 7, 2020, would have made the requirements for obtaining an H-1B visa much stricter.<\/li>\n<\/ul>\n<h4>What This Means:<\/h4>\n<p>DOL\u2019s 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.\u00a0 As of December 1, DOL (at <a href=\"https:\/\/www.flcdatacenter.com\/\">https:\/\/www.flcdatacenter.com\/<\/a>) still provides prevailing wage data in accordance with the new (incorrect) Prevailing Wage Rule. \u00a0We expect that it will take a few days for DOL to roll back to the prior correct prevailing wage data.<\/p>\n<p>DHS\u2019 new rule on H-1B visas had not yet taken effect.<\/p>\n<h4>What Happens Next:<\/h4>\n<p>The current administration will most likely appeal this decision and request that these rules be reinstated.\u00a0 SW Law Group will continue to monitor this, and all other immigration issues, and continue to post updates as appropriate.<\/p>\n","protected":false},"excerpt":{"rendered":"<p>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\u00a0ruling\u00a0from 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 [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":2968,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_et_pb_use_builder":"","_et_pb_old_content":"","_et_gb_content_width":""},"categories":[17,14,8,9,11,38,10,41],"tags":[66,96,44,171,60],"yst_prominent_words":[],"_links":{"self":[{"href":"https:\/\/www.swlgpc.com\/eng\/wp-json\/wp\/v2\/posts\/2965"}],"collection":[{"href":"https:\/\/www.swlgpc.com\/eng\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.swlgpc.com\/eng\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.swlgpc.com\/eng\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.swlgpc.com\/eng\/wp-json\/wp\/v2\/comments?post=2965"}],"version-history":[{"count":0,"href":"https:\/\/www.swlgpc.com\/eng\/wp-json\/wp\/v2\/posts\/2965\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.swlgpc.com\/eng\/wp-json\/"}],"wp:attachment":[{"href":"https:\/\/www.swlgpc.com\/eng\/wp-json\/wp\/v2\/media?parent=2965"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.swlgpc.com\/eng\/wp-json\/wp\/v2\/categories?post=2965"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.swlgpc.com\/eng\/wp-json\/wp\/v2\/tags?post=2965"},{"taxonomy":"yst_prominent_words","embeddable":true,"href":"https:\/\/www.swlgpc.com\/eng\/wp-json\/wp\/v2\/yst_prominent_words?post=2965"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}