Key Issues

Federal District Court Enjoins DOL and DHS Rules on H-1B Visas

December 2, 2020 (WASHINGTON INSIDER ALERT) - On December 1, Judge White of the Northern District of California issued a ruling invalidating the Department of Labor (DOL) and Department of Homeland Security (DHS) Interim Final Rules (IFR) that significantly increased prevailing wage levels and tightened H-1B eligibility criteria.

DOL’s IFR was unveiled on October 8 and went into effect immediately — preventing the regulated community, including the higher education community, from providing feedback or preparing prior to implementation. DOL’s IFR changed the computation of wage levels for permanent labor certifications and Labor Condition Applications under DOL’s four-tiered wage structure, resulting in significantly higher government prevailing wage minimums for foreign professional workers which, in many cases, precludes U.S. colleges and universities from hiring international employees to fill much needed positions. The DHS IFR, which was also unveiled on October 8 and put forward without notice or the opportunity for comment, was set to take effect on December 7. The IFR introduced stricter eligibility criteria for H-1B specialty occupations and placed new restrictions on H-1B workers at third-party worksites, among its provisions.

The ruling knocking down the two rules comes in response to a lawsuit, led by the Chamber of Commerce, which argued that DOL and DHS did not properly follow the Administrative Procedure Act when they published the regulations without providing advance notice or an opportunity for the public to provide feedback.

CUPA-HR joined an ACE-led amicus brief supporting the requests of plaintiffs — many of which were institutions of higher education — to issue injunctions against the rules. CUPA-HR also led the higher education community’s comments in response to DOL’s IFR.

While it is expected that the government will appeal the decision expeditiously the court’s ruling is effective immediately. However, it is unclear what that means for prevailing wage determinations that have been issued since October 8. It is also highly possible that DOL and DHS could take administrative steps to reissue the regulations based on the comments they received in response to the IFR.