Recently both the DOL and USCIS adopted new rules regarding H-1bs. We reported on them here. Just this week a US District Court in California found that USCIS and DOL violated the Administrative Procedures Act in promulgating these rules without allowing time for the public to comment on the rules before they went into effect.
In general, under the APA, government agencies must give the public a reasonable period of time to review, and comment on proposed rules. Once that period has elapsed, the agency then needs to consider the responses and only then can they issue the final rule and put it into effect (although it is usually only in effect 30 days after the final rule has been published. There are exceptions to this rule that allow agencies to publish final rules and then conduct the comment period, where the agency can show that emergency circumstances would require such an act. In the case at bar, both USCIS and DOL claimed that, because of the Corona Virus pandemic and its effects on the Economy, that it created the need for the rules to be implements as soon as possible and that this justified forging the usual rules. The District Court disagreed.
In a strongly worded opinion, the Court stated that, without even considering other factors, the fact that the President issued the Executive order telling the agencies to review such provisions over six months ago, and the fact that the agency has stated that they have been considering such provisions for well over 1 year, clearly shows that, in fact, the agencies do not consider such things “emergencies”. The court granted the Plaintiff’s motion for Summary Judgement and found that USCIS and the DOL violated the APA and the rules were unenforceable. The Court applied this ruling nationwide and to all persons, even those not a direct party to the action.
For those unfamiliar with the rules that were overturned, the DOL rule changed the way in which the DOL was calculating prevailing wages. It use to look at the average range of salaries for a position, and set 4 levels corresponding to approximately the 19th percentile, the 34th percentile the 45th percentile and the 68th percentile. The new rule had the level one wage starting at the 50th percentile, and the other 3 levels went up from there. This significantly raised the wages that companies would have to pay for foreign workers. The USCIS rules changed the definition of what a “specialty occupation” was, making it harder for employers to show that certain positions, especially computer based ones, actually qualified for an H-1B visa. It also limited agencies that contract out their employees to one year H-1Bs (and placed certain other requirements on them). The Court overturned these rules and they are no longer in effect (assuming that there is no appeal, and the Appeals court does not stay the decision). The DOL is in the process of changing back its database to the previous levels.
If you have any questions about this important ruling, please do not hesitate in contacting our office.
Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.