This afternoon, a judge set aside both the Interim Final Rules (“IFR”) issued by the U.S. Department of Homeland Security (“DHS”) and the U.S. Department of Labor (“DOL”). The DHS IFR was to take effect December 6, 2020 and it would redefine the requirements and parameters of the H-1B program. The DOL IFR took effect immediately on October 8, 2020 and redefined the different wage levels used in determining what an employer would be required to pay employees in the H-1B, H-1B1, and E-3 visa programs and in employment-based permanent residency (green card) programs. (See our post of October 7, 2020.)
A judge in the U.S. District Court for the Northern District of California set aside both rules stating that the government “failed to show good cause to dispense with the rational and thoughtful discourse that is provided by the APA’s notice and comment requirements.” [The APA (the Administrative Procedure Act) sets out the rules, including a notice and comment period, by which the federal government must follow to enact its rules. The current administration indicated that the dire situation of the economy was sufficient cause to by-pass the process; the court disagreed.]
With the IFRs set aside, in theory, this would mean that employers could once again rely on wage levels that were in place pre-October 8, 2020. We are monitoring how the government will react and what processes will be in place to comply with the court order. Stay tuned!