On December 1, 2020, the U.S. District Court for the Northern District of California issued a decision overturning two recent Interim Final Rules promulgated by the U.S. Department of Labor (DOL) and U.S. Department of Homeland Security (DHS). The DOL’s Interim Final Rule, which took effect on October 8, significantly increased the prevailing wage requirements that U.S. employers must pay to many H-1B workers, essentially making it impossible for many employers to afford to hire/employ workers on H-1B visas. The DHS’s Interim Final Rule, which was set to take effect on December 7, included several provisions in an attempt to further restrict eligibility for H-1B visas, including narrowing the definition of “specialty occupation” to require that the beneficiary’s degree be “directly related” to the offered position, tightening USCIS’s evaluations of an “employer-employee relationship,” and limiting the validity of H-1B petitions involving off-site placements to one year.

In yesterday’s decision, the court granted summary judgment to the plaintiffs, who were challenging both the substantive legality of these new H-1B restrictions as well as the appropriateness of the procedure by which the government agencies implemented the new rules. The court was unconvinced by the agencies’ use of the “good cause” exception to the Administrative Procedures Act, by which the government sought to promulgate these rules without offering the public the required notice and opportunity to comment before the rules were imposed.

With the prevailing wage increases now overturned, it is expected that further guidance will be forthcoming from the Department of Labor to reinstate the previous prevailing wage levels/amounts that had been in place up until October 7. The immigration attorneys at Harris Beach will be closely monitoring how this latest decision is implemented. If you would like to discuss how this change affects you, your business, or your employees, please contact any member of the Harris Beach immigration team.

Our Immigration Law Practice Group includes immigration attorneys that work across New York state in our Albany, Buffalo, Ithaca, Long Island, New York City, Rochester and Syracuse offices. Our immigration lawyers focus on strategies – including immigrant visas for permanent U.S. resident status and temporary visas for foreign nationals – to ensure that employers are able to hire, transfer, and retain the brightest and best non-U.S. talent.

This alert does not purport to be a substitute for advice of counsel on specific matters.

Harris Beach has offices throughout New York State, including Albany, Buffalo, Ithaca, Long Island, New York City, Rochester, Saratoga Springs, Syracuse and White Plains, as well as New Haven, Connecticut and Newark, New Jersey.