Lawsuits Filed Challenging New H1B Regulations
Three legal challenges have been brought against recent US Department of Labor and Department of Homeland Security rules.
In dispute are changes to the H-1B program, specifically:
- A DOL rule increasing the prevailing wage threshold for sponsored workers under a restructured system for H-1B, E-3, and H-1B1 nonimmigrant cases and the PERM labor certification program.
- A DHS rule that, among other changes, introduces stricter eligibility criteria for H-1B specialty occupations, placing new restrictions on H-1B migrants working at third-party worksites, and reinstating evidentiary policies that had been rescinded earlier this year, among other changes.
The interim final regulations from the DOL and DHS in respect of employment-based immigration, and particularly the H-1B program, were issued without notice or scope for public comment. The agencies justified the expedited process on the basis that this was essential to supporting US workers given the economic impact of the COVID-19 pandemic.
The lawsuits have been launched in the federal courts by several different plaintiffs including businesses and business groups, several universities and immigration rights groups. They assert that the US agencies, in fast-tracking the rules and omitting any form of public consultation or advance notice, failed to properly follow federal procedure.
In addition, the plaintiffs allege the rules are arbitrary and that the DOL rule improperly relied on incorrect data and faulty reasoning to justify the changes made to the prevailing wage structure.
One of the three cases, brought by a group of IT companies, seeks to end the Labor Department’s regulation, which took effect on October 8, 2020. The case citation is Purdue, et al. v. Scalia, Case No. 1:20-CV-03006 (D.D.C., October 19, 2020) and ITServe Alliance Inc., et al. v. Scalia, Case No. 3:20-14604 (D.N.J., October 16, 2020).
The plaintiffs in the remaining two cases are seeking injunctions to pause enforcement of the DOS rule, which is due to apply from December 7, 2020. The citation is: Chamber of Commerce et al. v. DHS et al., Case No. 20-CV-7331 (N.D. Ca., October 19, 2020).
The rules continue to be effective until and unless an injunction is awarded, although further lawsuits are expected to be brought to challenge the rules. We will keep you updated as developments happen.
US immigration advice
NNU Immigration are specialist US attorneys based in London. For advice on US visas or immigration, including guidance on policy and rule developments, please contact us.
This article does not constitute direct legal advice and is for informational purposes only.
Last updated: October 20, 2020
Author
Founder & Principal Attorney Nita Nicole Upadhye is a recognized leader in the field of US business immigration law, (The Legal 500, Chambers & Partners, Who's Who Legal and AILA) and an experienced and trusted advisor to large multinational corporates through to SMEs. She provides strategic immigration advice and specialist application support to corporations and professionals, entrepreneurs, investors, artists, actors and athletes from across the globe to meet their US-bound talent mobility needs.
Nita is an active public speaker, thought leader, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals.
