Published on December 14, 2020
On December 1, 2020, in U.S. Chamber of Commerce, et al. v. DHS, et al., the United States District Court for the Northern District of California set aside both the Department of Labor (DOL) interim final rule raising the threshold for prevailing wages, and the Department of Homeland Security (DHS) rule amending certain requirements for H-1B petitions. The DOL rule, which went into immediate effect on October 8, 2020, resulted in substantial increases of prevailing wage rates for all occupations for purposes of H-1B, H-1B1, and E-3 petitions, as well as PERM labor certifications. The DHS rule, which was set to go into effect on December 7, 2020, would have made several changes to the H-1B program, including amending the regulatory definition and standard for a specialty occupation and limiting H-1B petition validity for off-site employment.
The Court found that the agencies violated the Administrative Procedures Act (APA) by implementing the rules on an emergency basis without allowing for notice and comment. The Court’s decision blocks DOL and DHS from enforcing either rule nationwide.
As a result of this decision, DOL announced that it will apply the Occupational Employment Statistics (OES) wage data in effect before the effective date of the interim final rule to all pending and newly submitted prevailing wage requests. In addition, the agency issued guidance for employers requesting review of prevailing wage determinations issued based on the higher prevailing wages implemented by the rule. Specifically, DOL will accept requests from employers to review prevailing wage determinations issued between October 8, 2020 and December 1, 2020 with the higher prevailing wage rates until January 4, 2021.
We anticipate that DOL and DHS will appeal the District Court’s decision, and we will continue to closely monitor this situation. Please contact the immigration attorneys at Ryan Swanson for additional information regarding the Court’s decision and recent changes in business immigration that impact your case or your business.
If you have additional questions, please feel free to contact any member of the Immigration Group at Ryan Swanson.
Amy Royalty can be reached at [email protected].
Jen Chen can be reached at [email protected].
Cody Nunn can be reached at [email protected].
Marsha Mavunkel can be reached at [email protected].
Janet Cheetham can be reached at [email protected].
Joel Paget can be reached at [email protected].
This message has been released by the Immigration Group at Ryan, Swanson & Cleveland, PLLC to advise of recent developments in the law. Because each situation is different, this information is intended for general information purposes only and is not intended to provide legal advice on any specific facts and circumstances. Ryan, Swanson & Cleveland, PLLC is a full-service law firm located in Seattle, Washington.