Federal Judges Strikes Down Trump H-1B Rules

On Tuesday, December 1, 2020 Judge Jeffrey White, a Bush appointee to the US District Court in California, struck down two Trump Administration rules which likely would have to drastically reduced the number of H-1B approvals granted each year to skilled foreign national workers.

In October, the Department of Labor (“DOL”) and United States Citizenship and Immigration Services (“USCIS”) announced “interim final rules”  without allowing for public comment, normally required under the Administrative Procedure Act (“APA”).  These rules dramatically increased the prevailing wage levels which determine the minimum amount that must be paid by an employer to an H-1B worker and would limit the types of occupations that would be eligible for an H-1B classification. The rule on wages, was effective immediately in October and the rule limiting eligible occupations was to take effect on Monday, December 7.   The DOL and USCIS defended their decisions to make the interim final rules effective immediately without providing for public comment due to COVID-19 -related job losses.

As predicted, lawsuits were filed seeking to enjoin the implementation of these rules, arguing that there was not good cause to circumvent the rules under the APA .

Judge White acknowledged that, while “the COVID-19 pandemic is unprecedented in its scope and its impact, and qualifies as an emergency” however he later added “the Court cannot countenance the Defendant’s reliance on the COVID-19 pandemic to invoke the good cause exception. The pandemic’s impact on the economy is the only reason DHS proffered as good cause, and Defendants do not dispute   that the failure to provide notice and comment was prejudicial.  Accordingly, the Court concludes the DHS Rule was promulgated ‘without observance of the procedure required by law’ and must be set aside.”