December 2, 2020
In October the Trump administration announced two proclamations making major changes to the H-1B program: Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States which significantly increased prevailing wage determinations for H-1B, and E3 visas; and Strengthening the H-1B Nonimmigrant Visa Classification Program, which made some key changes to the H-1B program by creating new, narrow definitions of specialty occupation and employer-employee relationship that were supposed to go into effect on December 7, 2020.
Yesterday, in Chamber of Commerce of the United State of America et al v. United States Department of Homeland Security et al, case number 4:20-cv-07331, the Northern District Court of California struck down the above two directives.
The Court found that DHS and the DOL did not abide by the Administrative Procedure Act’s Notice and Comment requirement – a 30 day waiting period which give stakeholders an opportunity to participate in the process by providing comments on the proposed proclamations and did not show good cause to bypass the Notice and Comment requirement. The Court further ruled that DHS and the DOL failed to show good cause to bypass the Notice and Comment requirement. DHS and the DOL cited skyrocketing and widespread unemployment as a basis for immediate action but failed to implement any action for 6 months.
The Court closed their opinion with the following:
“However, 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.” Arizona v. United States, 567 U.S. 387, 416 (2012).
The Court’s decision sets aside each of the Trump proclamations by completely halting the prevailing wage proclamation and keeping the second proclamation, setting new H-1B definitions, from taking effect on December 7, 2020. H-1B stakeholders can now breathe a sigh of relief as this decision is undoubtedly a win for their camp. However, we can expect an expeditious appeal by government attorneys. Furthermore, DHS and DOL can theoretically re-release their policies while abiding by the policies of the APA. However, with the Trump administration coming to an end in a little less than a month that route is less than likely.