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Federal Judge Enjoins DOL and DHS Interim Final Rules on H-1B and PERM Wages, Specialty Occupation

Federal Judge Enjoins DOL and DHS Interim Final Rules on H-1B and PERM Wages, Specialty Occupation

December 2, 2020

On December 1, a U.S. District Court Judge issued a ruling invalidating the recent interim final regulations promulgated by the Department of Labor (DOL) and the Department of Homeland Security (DHS).

The DOL rule went into effect immediately upon publication on October 8 and called for significantly higher prevailing wages for H-1B and PERM cases. For many technical positions, the new wage structure required a minimum of $200,000 per year to be paid for entry-level positions. 

The DHS rule, which would have taken effect on December 7, provided for a stricter definition of “specialty occupation” and for increased requirements on third-party worksites.

The federal judge ruled that the government had not provided sufficient rationale to issue the rules without the normal notice and comment period and therefore violated the Administrative Procedure Act (APA). Yesterday’s ruling invalidates the rules, though it seems likely that the administration will appeal the District Court decision. The government may also take steps to quickly reissue the regulations, complying with the APA, in the coming weeks before the new President is sworn in. 

It is not clear how the DOL will handle new requests for prevailing wage (i.e. will they revert back to the wages in effect prior to the DOL rule), nor whether they will proactively issue new prevailing wage determinations for the requests made following implementation of the DOL wage rule (between October 8 and December 1, 2020). The American Immigration Lawyers Association (AILA) has asked the DOL:

  1. How quickly will the FLAG system be updated for LCA submissions?; and
  2. Will the DOL be reissuing prevailing wage determinations for the period October 8 to December 1?

The DOL said it is working on a public notice to be published soon.

Employers may choose to file new prevailing wage requests now for determinations received from October 8 to December 1. A separate lawsuit has asked the DOL to affirmatively go back and reissue these determinations based on the July 1, 2020 data (the most recent annual update); that case remains pending and it is not clear when a decision will be issued, though we expect it shortly.

Weaver Schlenger will continue to provide updates here.

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