New DHS and DOL H-1B Regulations Set Aside by Federal District Court

On December 1, 2020, the U.S. District Court for the Northern District of California set aside two recent federal regulations regarding the H-1B Specialty Occupation program. The Department of Homeland Security (DHS) interim final rule “Strengthening the H-1B Nonimmigrant Visa Classification Program” put forth extreme restrictions on the H-1B program including employer-employee definitions and restrictions on third party worksites. The Department of Labor interim final rule “Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States” drastically increased prevailing wage rates for H-1B, H-1B1, and E-3 nonimmigrants, as well as for those seeking green cards through the PERM Labor Market process, making it hard for employers to meet the wage rates to file petitions for employees. The court found that the agencies did not have good cause to bypass notice and comment rulemaking procedures in violation of the Administrative Procedures Act. The summary judgement ruling is immediately effective. The government is expected to appeal, which may reverse the decision. Any updates on this case will be posted.