Third judge rules against administration on issuance of DOL rule

A federal judge in Washington, DC, has ruled that the Trump administration did not follow proper procedures when it issued a rule in October to amend wage requirements for the H-1B, H-1B1 and E-3 visa categories and for permanent labor certifications (PERM). It was the third time this month that a federal judge ruled against the administration in a case challenging the rule.

Key Points:

• In his ruling Monday, U.S. District Judge Emmet G. Sullivan said the administration had not established “good cause” to issue the regulation as an interim final rule without providing the normal notice and comment period.
• Federal judges in California and New Jersey have also ruled that the administration did not follow proper procedures when it issued the rule.
• The Department of Labor (DOL) said on Dec. 3 that it would comply with court orders by reverting to the Occupational Employment Statistics (OES) prevailing wage data that was in effect before the regulation took effect on Oct. 8.
• Monday’s ruling means that a third federal judge has ruled against the administration on the wage rule, and it does not change the status quo. The rule remains suspended.

Additional Information: Judge Sullivan ordered DOL to take steps to reissue prevailing wage determinations that were issued after Oct. 8 under the interim final rule. BAL will continue to follow litigation related to the DOL rule and will provide updates as information becomes available.

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

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