December 04, 2020
In a major victory for the business community, a federal court invalidated a pair of interim final rules on H-1B visas that would have significantly restricted the employment of workers on high-skill visas. HR Policy urged the court to overturn the rules in an amicus brief.
The case hinged on whether the Department of Homeland Security (DHS) had met the Administrative Procedure Act’s (APA) “good cause” exception, which allows the issuance of rules without prior notice and the opportunity for the public to comment. The government “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,” Judge Jeffrey S. White wrote in his opinion.
DHS predicted its interim final rule would have affected more than one third of H-1B petitions. The rule would have tightened eligibility standards and applied greater scrutiny to employers with H-1B workers at third party work sites. The DOL's interim final rule would have raised H-1B wage requirements to unrealistic levels.
HR Policy has also joined comments raising significant concerns about a proposed rulemaking that would amend the process by which the DHS selects H-1B petitions by first selecting registrations based on the highest salary levels rather than through a randomized selection process.
Meanwhile, the Senate unanimously approved legislation that would remove the per-country cap on employment-based green cards. Under current law, no more than 7% of employment-based green cards can be issued to any one country. The move would help reduce the backlog of applications, especially for immigrants on H-1B visas from India. However, Sen. Mike Lee's (R-UT) bill places a cap on H-1B workers who can obtain green cards to 50% of the total number of employment-based immigrants admitted in a fiscal year. This and other changes conflict with the House version of the bill, passed in July 2019, and casts into doubt whether the bills can be merged in January. "Unfortunately the provisions sent to the House by the Senate yesterday most likely make matters worse, not better," House Immigration and Citizenship subcommittee Chair Zoe Lofgren (D-CA) said.
Outlook: It is worth noting the court's ruling merely addressed the process by which the rules were established, not the substance of the rules themselves. The summary judgement sidelines the rules for now (in order to re-enact the rules, the government would have to re-introduce them and allow for the 60-day notice and comment period before finalizing the rules). It is unclear, meanwhile, what the Biden administration’s approach will be. Further proposed regulations may be on the way.