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12.02.2020 H-1B DHS and DOL Interim Final Rules Invalidated by Federal District Judge By: D. Earl Baggett & Tom C. Narvaez

In October, the Department of Labor (DOL) and the Department of Homeland Security (DHS) issued two interim final rules that would negatively, and significantly, impact how H-1B nonimmigrant “specialty occupation” visa petitions are adjudicated. We previously provided an alert regarding these interim final rules here. As expected, several lawsuits were filed to challenge these interim final rules.

On Monday, the United States District Court for the Northern District of California granted partial summary judgment to the plaintiffs in the case of Chamber of Commerce et al. v. DHS (20-cv-07331-JSW). Therefore, effective immediately, the two interim final rules issued in October by the DHS and DOL have been invalidated.

Both interim final rules would have had a significant impact on employers who sponsor H-1B workers and sponsor employment-based green cards due to the new required wage levels, limiting H-1B approvals for third-party placements to one year, imposing additional costs associated with extensions on a yearly basis for those H-1B employees assigned to third-party sites, requiring the candidate’s degree to be directly related to the position, and bringing added scrutiny in adjudicating H-1B petitions.

Although the federal court order is effective immediately, the Trump Administration can appeal the decision. At this time, it is unknown how the Trump Administration will respond or whether it will attempt to circumvent the ruling by taking additional administrative actions to promulgate these onerous H-1B changes through other means. Furthermore, at this time the DOL has not provided guidance to address prevailing wage determinations that were issued under the now invalidated interim final rule. Similarly, it is unknown how long it will take the DOL to revert the wages listed in its Online Wage Library to pre-rule wage levels. Williams Mullen is closely monitoring the situation and will provide updates as further information becomes available.

Employers should consult immigration counsel to identify H-1B employees who may be affected by these new rules and develop a strategy to prepare for their future H-1B petitions or green card sponsorships.

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