December 1, 2020

On December 1, 2020, the U.S. District Court for the Northern District of California (Judge Jeffery S. White) set aside the DHS interim final rule, “Strengthening the H-1B Nonimmigrant Visa Classification Program”, and the DOL interim final rule, “Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States”. The judge believes that United States of Homeland Security “failed to show there was good cause to dispense with the rational and thoughtful discourse that is provided by the APA’s notice and comment requirements.”

Background:

• On 10/07/2020, DOL published interim final rule (IFR) to amend existing rule governing H-1B and green card wage system which raises wage in all level for 50%. This rule took effect on 10/08/2020;
• On 10/07/2020, DHS published IFR to change the definition of H-1B specialty occupation that there must be a direct relationship between the required degree field(s) and the duties of the position and shorten third-party working H-1B from 3-yr valid period to 1-yr. This rule is under common period now;

What does the court decision mean:

This decision set aside both IFR as the publication of both violates APA procedure and did not give public enough time to comment. They failed to show there was a good cause to bypass APA procedure. Upon this decision, H-1B and green card wage system will be resumed to previous level. There is no change on H-1B regulation.

What should we do now:

There are few weeks left for Trump administration and he is pushing out all possible rules before the inauguration of Biden including two executive orders on visa ban; elimination of duration status for student visa holders; H-1B lottery system based on wage level; elimination of H-1B in lieu of H-1B; rescinding H-4 EAD, etc.

As a result, we are expecting more surprise in the next few weeks. As the wage system was just resumed, we encourage everyone who has PERM and H-1B transfer, extension and amendment request to file wage determination as soon as possible.

Contact us if you have any questions. Attorney Jing Feng is a decorated immigration lawyer who has been working in immigration for years. She has notable experience in this domain and has successfully gained U.S. residency for thousands of her clients. For more consultation on I-485 preparation, please contact Jing Feng Law Group, PLLC at jfeng@fengvisa.com or 646-288-7129. We look forward to hearing from you!