On December 1, 2020, a federal court struck down two new interim final rules issued by the Department of Labor (DOL) and the Department of Homeland Security (DHS) on October 8, 2020 aimed at drastically reducing the ability of U.S. employers to petition for immigrant visas or temporary H-1B specialty occupation visas for talented foreign professionals. The government stated the rules were necessary to prevent foreign job competition with U.S. workers as the nation grapples with the economic effects of the pandemic.
The DOL rule dramatically inflates the wages, in many cases far above market rates, that employers must pay to be able to successfully petition for foreign employees. The DHS rule would drastically narrow the definition of “specialty occupation” and also limit H-1B visas to one year rather than three for employees whose employers would have them work at clients’ worksites. The DOL rule took effect immediately on publication, and the DHS rule was slated to take effect on December 7, 2020.
The U.S. Chamber of Commerce and other trade associations and businesses sued. In its ruling in their favor, the federal court found that the administration did not have the good cause that is required if the government is to circumvent the normal process of issuing proposed rules that allow for public comment before rules are finalized.
While the government argued that the pandemic created emergency conditions enabling it to ignore the normal notice and comment process for rulemaking, the court disagreed, holding instead that the government had “unduly delayed” publishing rules that it had been working on since 2017. The court noted that the administration’s justification of “skyrocketing” unemployment was undercut by the administration’s failure to issue the rules six months previously, when unemployment due to COVID-19 was at its peak. Further undermining its argument was the administration’s own data showing unemployment for jobs requiring at least a bachelor’s degree, as is required for H-1B visas and professional immigrant visas, at 4.8% in September 2020, down from 8.4% in April 2020.
The court’s ruling vacates the new rules immediately. The government is likely to appeal. The incoming Biden administration may take a very position on these rules, however, and decide not to defend the rules against legal challenges.