US District Court Sets Aside New Wage Rules
The US district court has set aside the two announced rules that would have impacted numerous employment-based visa categories to the United States including E-3 visas.
Previously, we mentioned these regulations were already being challenged in several lawsuits that have been working their way relatively quickly through the US federal court system. Those lawsuits have worked for now to halt these new rules related both to the Department of Labor (DOL) Prevailing Wage changes and U.S. Citizenship and Immigration Services (USCIS) redefinition of a specialty occupation.
The main thrust of those regulations would have been to try to significantly reduce the number of foreign workers in the US by making it extremely difficult for US employers to hire and bring in foreign workers by unfairly requiring them to be paid much more than similar US workers. Redefining the term “specialty occupation” to mean that less positions could qualify for widely used H-1B visas, the H-1B1 visa for Singapore and Chile, and the Australia specific E-3 visa.
On December 01, 2020 in the US District Court for the Northern District of California, an order issued in the Chamber of Commerce, et al. v. DHS, et al., No. 20-cv-7331 found that both the DOL and USCIS rules were promulgated in violation of the Administrative Procedures Act. The court found that the agencies “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.”
The DOL has already complied with this rule and has provided an update on their website. The DOL has made required technical changes to the Foreign Labor Application Gateway (FLAG) system. As such, DOL Labor Condition Applications (LCA’s) has changed the OES prevailing wage data for each SOC and area of intended employment that was in effect before October 7, 2020 (i.e., data for 7/1/2020-06/30/2021). Thus, there has been no drastic changes to prevailing wage levels used for LCA’s as intended by the rule.
Note that, this ruling still may be appealed by the Trump Administration in the time left in office (until January 20, 2021) and/or may still try to push through regulations related to one or both the DOL prevailing wages and the definition of a specialty occupation. There have been reports that the Administration is still considering significant changes to US immigration in the coming weeks.
About The Author
Melissa Vincenty is a US attorney, an Australian migration agent and the founder and managing director of Worldwide Migration Partners. Melissa has over 20 years of experience in migration law, including practising at the world’s largest US immigration firm and more than 15 years as a Country Specialist (China and Tibet) for Amnesty International USA.