By Stuart Anderson Senior Contributor
The Trump administration lost an H-1B visa case for the third time in December. U.S. District Judge Emmet C. Sullivan ruled the Department of Labor (DOL) violated the Administrative Procedure Act (APA) when it claimed a “good cause” exception to publish a rule without public comment to inflate the required minimum wage for H-1B visa holders and employment-based immigrants. The American Immigration Lawyers Association (AILA) spearheaded the case for the plaintiffs in Purdue University et al. v. Scalia, with Stellar IT added as a plaintiff.
On December 14, 2020, Judge Sullivan ordered DOL “to reissue any prevailing wage determinations issued on or after October 8, 2020 under the wage methodology” of the now unlawful DOL wage rule. That goes beyond the judges in two other cases recently decided against the Department of Labor.
On December 1, 2020, in the Northern District of California, a federal judge set aside the Department of Labor regulation that would have raised the required salary for H-1B visa holders and employment-based immigrants by 40% to 50%, well above the market wage for comparable U.S. workers. U.S. District Judge Jeffrey S. White also invalidated a Department of Homeland Security (DHS) rule that would have been effective December 7, 2020. The DHS regulation narrowed the definition of an H-1B “specialty occupation,” according to company declarations in the case, in a way that makes it nearly impossible for most foreign-born scientists and engineers to qualify for an H-1B visa.
On December 3, 2020, a federal judge in New Jersey granted ITServe Alliance, Dots Technologies and other companies a preliminary injunction to block the Department of Labor from implementing its H-1B wage rule. Analysts concluded the rule’s objective was to price out of the U.S. labor market existing H-1B visa holders and international students who graduate from U.S. universities. The Wasden Banias law firm filed the complaint.
Judge Sullivan relied on similar evidence presented in the two earlier decisions and cited employment data in the Northern District of California case that showed the economic impact of the coronavirus pandemic was mostly on service jobs, not in the computer occupations in which most H-1B visa holders work. Judge Sullivan quoted from a National Foundation for American Policy (NFAP) analysis contained in Judge White’s opinion in California: “During the 30 days ending October 2, 2020, there were over 655,000 active job vacancy postings advertised online for jobs in common computer occupations—including over 280,000 postings for ‘software developers, applications.’” Indeed, “[t]he unemployment rate in computer occupations was 3.0% in January 2020 (before the economic impacts of the virus were felt) and [stood] at 3.5% in September 2020.”
Judge Sullivan was unimpressed with the Trump administration’s argument it needed to publish the rule quickly and without public comment to prevent companies from filing labor condition applications for H-1Bs because the wage requirements would rise under the new regulation. “The Court finds the DOL’s explanation insufficient,” wrote Judge Sullivan. “As an initial matter, although the DOL claims that ‘announcing a change to the [prevailing wage] levels in advance of the change taking effect’ would have caused harm to the public interest, the Executive Branch had already announced its intent to issue such a rule some months prior to the IFR’s [interim final rule] promulgation.” (Emphasis added.) He noted the upcoming DOL regulation was mentioned in an administration press briefing on June 22, 2020, and by the president in a White House press event on August 3, 2020.
As in the two other cases, the judge found the Department of Labor could not show it was “impracticable” to provide the public an opportunity to comment on the rule. “[G]iven the DOL’s more than six month delay in implementing changes to the prevailing wage calculation, the Court declines to countenance the agency’s avoidance of notice-and-comment procedures,” wrote Judge Sullivan. “Under D.C. Circuit precedent, ‘[n]otice and comment can only be avoided in truly exceptional emergency situations, which notably, cannot arise as a result of the agency’s own delay.’” Even if one were to accept the DOL argument that the national unemployment rate was the correct metric to consider, April 2020 was the height of the coronavirus-related national unemployment rate. The wage rule was not published until October 2020.
Do these three court decisions mean the DOL and DHS H-1B regulations are dead? Not necessarily. “The Department of Labor does not need to start the regulatory process from the beginning by publishing a new Notice of Proposed Rulemaking, a process for which there is not enough time remaining in the current administration,” said William Stock of Klasko Immigration Law Partners in an interview. “The Department of Labor published its wage rule in October, and accepted comments from the public for 30 days. The department can analyze those comments and move directly to a final rule even though the interim rule was set aside on procedural grounds. . . . The Department of Labor would have until December 20, 2020, to republish the wage rule as a final rule for it to go into effect before Inauguration Day, January 20, 2021.”
Yet even if the DOL and DHS rules are published on or before December 20, 2020, that does not mean the legal cases against the rules are over. “In the Northern District of California case, Judge White opted to issue a partial summary judgment on the interim rule issue, but also did not dismiss the plaintiffs’ substantive challenges to the rule being arbitrary and capricious as well as not in accordance with the Immigration and Nationality Act,” said Stock. “Should the Department of Labor try to cure its notice and comment defect and quickly republish the rule, Judge White will likely continue to hear plaintiff’s challenge that the rule in no way reflects ‘real world’ wages of comparable workers, and so violates the Immigration and Nationality Act.”
Ken Cuccinelli at the Department of Homeland Security said up to 200,000 H-1B professionals could lose their jobs under the DHS H-1B regulation. Many other potential H-1B visa holders, including recent international students, would become too expensive to be employed under the Department of Labor’s rule. Approximately 75% to 80% of full-time graduate students in computer science and electrical engineering at U.S. universities are international students who would need H-1B status to work long-term in the United States.
Stories about the vaccines to combat Covid-19 developed by Moderna and Pfizer read like court briefs on the value of immigrants. The vaccines were largely possible because America historically has not followed the type of immigration policies in place over the past four years. Companies and economists consider foreign-born scientists and engineers critical to America’s future.
Starting in January 2017, the Trump administration has tried to prevent as many foreign-born individuals as possible from immigrating to or working in America. Expect these administration’s efforts to continue until the day Donald Trump leaves office.
By Stuart Anderson Senior Contributor