Two federal courts have struck down two government rules designed to reduce the number of visas issued to skilled foreign workers. It is anticipated that a third federal court will follow the same path.
The two government rules (one from the Department of Labor and the other from the Department of Homeland security) impose salary requirements on companies employing skilled overseas workers and limits on specialty occupations. The Department of Homeland Security (DHS) and the Department of Labor (DOL) argued that the rules were an emergency response to the high unemployment rates created by the Covid-19 pandemic. The rule on wages, proposed by the Department of Labor, took effect in October, while the Homeland Security rule on occupations and other issues was supposed to take effect on December 7, 2020.
These federal courts found that the government did not follow transparency procedures. They also dismissed the government’s contention that the changes were an emergency response to pandemic job losses. Indeed, DHS and DOL already thought of adopting these rules long before the Covid-19 pandemic. Thus, the courts ruled that the federal government did not make a case for implementing the rules under the Administrative Procedure Act, which makes agencies accountable to the public by requiring a detailed process for enacting regulations.
These rulings are a big relief for a lot of individuals as it enables a large number of high skilled-workers to maintain their jobs and their families in the United States. For H-1B workers and their employers, this decision means that soon they will no longer be subject to the high prevailing wages published by the DOL. It also means that the DHS more restricting rules on the H-1B visa program will certainly not go into effect.