A California judge has set aside two recent immigration regulations from the Departments of Labor (DOL) and Homeland Security (DHS). The court in U.S. Chamber of Commerce et al. v. DHS (20-cv-07331), found that the agencies did not have good cause to bypass notice and comment rulemaking procedures in violation of the Administrative Procedures Act.
The two changes had resulted in massive increases to H-1B prevailing wages (DOL), and placed new restrictions on third-party placement of H-1B workers and changed evidentiary policies (USCIS). Before the DOL salary increases, an entry level computer programmer in Chicago was listed at a $50,000 annual wage minimum. After the increase, the minimum salary needed to be $90,000. A Level 4 (highest level) programmer in Chicago who was previously at a $120,000 wage minimum jumped to a minimum of $222,000 per year. Employers filing H-1B petitions must agree to pay at least the prevailing age, so that an entry level programmer in Chicago needed to be paid $90,000 under the new wage regime.
This ruling immediately invalidates the rules, however the government will almost certainly appeal the decision quickly. In the meantime, many H-1B filings and some permanent residence cases have been filed using the newer, elevated, wage levels. Employers would need to file amendments to reduce the salary but, as of December 2, 2020, the Department of Labor has not updated the prevailing wage levels to reflect the decision.
For more information, please contact Elaine Martin, Immigration Lawyer.
Elaine Martin has been practising US and global immigration law since 1997. She is an immigrant herself (from Ireland), so has a special understanding of the legal and emotional challenges involved in relocating to a new country.