Federal judge sets aside DHS, DOL rules on H-1B eligibility, wage requirements

A federal judge ruled Tuesday to set aside Trump administration regulations amending H-1B eligibility criteria and changing wage requirements for the H-1B, H-1B1 and E-3 visa categories and for permanent labor certifications (PERM).

Key Points:

• District Judge Jeffrey White ruled that the administration had not provided a strong enough reason to issue the rules in October without the normal notice and comment period required by the Administrative Procedure Act (APA).
• As a result of the decision, the Department of Labor (DOL) may no longer enforce its wage rule and the Department of Homeland Security (DHS) may not begin implementing the new “specialty occupation” rule as scheduled on Dec. 7.
• The agencies have not yet issued guidance in response to the ruling. The government is likely to appeal.

Background: Both the DHS and DOL rules were published Oct. 8, with the government invoking the APA’s “good cause exception” to waive the normal notice and comment period and, in the case of the DOL rule, to implement the regulation immediately. Business organizations, universities and immigration groups filed lawsuits in October challenging both rules. Judge White ruled on Tuesday that the regulations must be set aside.

DHS also proposed in November to replace the H-1B lottery with a new wage-based allocation process, and will accept comments until Dec. 2. Though today’s ruling does not affect that proposal, it is also expected to be challenged in court.

BAL Analysis: The ruling is a victory for the organizations that sued to stop the government from implementing and enforcing the DHS and DOL rules. BAL continues to review the ruling and will provide additional information as necessary.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.

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