DECEMBER 2020
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Immigration

Major New Rules for H-1B’s and Green Card Process

Dilip Patel

By DILIP PATEL

On Oct. 8, 2020, the Trump administration published two regulations that will significantly impact H-1B and employment-based green card processing. One rule was published by USCIS (the “USCIS Rule”) and the other was published by the Department of Labor (the “DOL Rule”).

The DOL Rule was effective immediately, while the USCIS Rule is set to be effective Dec. 7.The USCIS regulation significantly tightens the definition of “Specialty Occupation.” The DOL regulation significantly changed the methodology of calculating prevailing wages, which are necessary for H-1B’s as well as for green cards based on job offers.

Most commentators agree that the rules would adversely impact not only new H-1B’s but also applications for extensions. Almost immediately, three new lawsuits were filed challenging the new rules. We wait to see if courts will issue injunctions halt application of the new rules.

The complaints argue that the new H-1B rules will make it near impossible for many U.S. businesses to hire foreign workers — particularly those in the Science, Technology, Engineering, and Math (STEM) fields. The timing of these rules — with the Covid-19 pandemic still raging in the United States — could not be worse.

All three lawsuits challenge the way in which the agencies enacted the rule. The agencies did not provide the public notice and an opportunity to comment. The lawsuits also claim the rules are not supported by adequate reasoning and evidence.

The first lawsuit to challenge DOL’s rule — IT Serve Alliance, Inc. vs. Scalia — was brought on behalf of a membership organization of information technology companies and seven member companies. Plaintiffs argue that DOL will require “exponentially higher rates” with no notice. They also take aim at the rule because it is based on “outdated, incorrect, or limited empirical data.”

The second lawsuit to challenge DOL’s rule, Purdue University vs. Scalia, was brought on behalf of Purdue University, Indiana University, the University of Michigan, as well as several trade associations.

A third lawsuit was filed by the U.S. Chamber of Commerce, Stanford University, Cornell University, the California Institute of Technology, and several business associations in the Northern District of California on Oct. 19. The lawsuit, U.S. Chamber of Commerce vs. DHS, challenges both the DHS and DOL rules.

The lawsuits attack the way in which the rules were issued as “Interim Final Rules.” That means that the public and advocates don’t have an opportunity to inspect and comment on the rules before they go into effect. A rule can only be issued as “interim final” if the agencies can show “good cause,” which DHS and DOL fail to do.

The lawsuits also challenge the economics – or lack thereof – that inform the DOL rule and in the case of the Chamber of Commerce lawsuit, the DHS rule as well. Both lawsuits claim that the agencies did not adequately explain why they were adopting the rules or consider the interests of various constituents who would be affected by the rules.

Without explanation, employers “now must pay dramatically higher wages for foreign national employees as compared to similarly situated Americans; in some case, the required wages increased 50 percent overnight,” according to the Purdue University complaint.

The consequences “are extraordinary,” according to the Chamber of Commerce lawsuit: “If left unchecked, they would sever the employment relationship of hundreds of thousands of existing employees in the United States, and they would virtually foreclose the hiring of new individuals via the H-1B program.”

The lawsuits seek preliminary injunctive relief, which would mean a fast decision to halt the new rules and keep the status quo in place.

Now more than ever, the status quo for highly skilled workers cannot be disrupted. The U.S. needs highly skilled workers, especially in the fields of science and medicine, to wage the war on Covid-19. These lawsuits act as a check on the administration’s efforts to stop the flow of foreign workers by any means necessary.

Dilip Patel of Buchanan Ingersoll & Rooney PC, a board-certified expert on immigration law, can be reached at (813) 222-1120 or email dilip.patel@bipc.com

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