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Court Blocks New H-1B Rules

Kauff McGuire and Margolis LLP
New York, NY
December 3, 2020

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A federal district court in California has set aside two new interim final rules recently promulgated by the Department of Homeland Security (DHS) and the Department of Labor (DOL), both of which were aimed at making it more difficult to obtain an H-1B visa. The DOL rule dramatically increased the prevailing wage levels that employers are required to pay their H-1B employees, while the DHS rule narrowed the definition of “specialty occupation,” among other things. The prevailing wage rule was effective immediately in October, while the specialty occupation changes were to take effect on December 7.  In both cases, the court found that the government did not follow the required steps for issuing new rules.

It is unclear how the DOL and DHS will respond to the court decision, which effectively blocks the agencies from implementing the rules unless an appeals court determines otherwise. The Trump administration has not announced whether it plans to appeal the decision, nor has the DOL indicated how it will treat prevailing wage determinations issued over the past two months or when it will update its prevailing wage data consistent with the court’s decision. We will keep you posted as we learn more.