U.S. DISTRICT COURT STRIKES DOWN NEW DHS AND DOL RULES THAT SOUGHT TO RESTRICT H-1B VISAS
by Rabindra Singh
The U.S. District Court for the Northern District of California set aside the DHS interim final rule, Strengthening the H-1B Nonimmigrant Visa Classification Program, and the DOL interim final rule, Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States.
The DOL rule was published on October 8, 2020, and went into effect immediately. It significantly increased the salary requirements for H-1B and PERM Labor Certification cases. The DHS rule, which aimed to revises the definition of the term “specialty occupation,” among other changes to the H-1B regulations, was scheduled to go into effect on December 7, 2020.
Judge Jeffrey S. White granting the Plaintiffs’ request for preliminary injunction quoted the U.S. Supreme Court decision in Arizona v. United States, 567 U.S. 387, 416 (2012), writing that, while the COVID-19 pandemic has wreaked havoc on the nation’s health and the personal finances of millions of Americans, “[t]he history of the United States is in part made of the stories, talents and lasting contributions of those who crossed oceans and deserts to come here. The National Government has significant power to regulate immigration. With power comes responsibility, and the sound exercise of national power over immigration depends on the Nation’s meeting its responsibility to base its laws on a political will informed by searching, thoughtful, rational civic discourse.”
Judge White concluded by stating that the Defendants failed to show there was good cause to dispense with the rational and thoughtful discourse that is provided by the (Administrative Procedure Act) APA’s notice and comment requirements. Accordingly, the Court sets aside the Rules on the basis that they were promulgated in violation of 5 U.S.C. section 553(b).