Legal Challenges Mounted Against New DOL and DHS Rules

The issue

The U.S. Chamber of Commerce, the National Association of Manufacturers, numerous universities and other groups are challenging two new immigration regulations that were promulgated on a fast track by the Departments of Labor (DOL) and Homeland Security (DHS) in recent days. The plaintiffs in three federal lawsuits assert that DOL and DHS did not properly follow federal procedure when they published the regulations without providing advance notice or an opportunity for the public to provide feedback. The lawsuits also charge that the rules are arbitrary and capricious and that the DOL rule improperly relied on incorrect data and faulty reasoning to justify the changes made to the prevailing wage structure. 

The plaintiffs in each case are seeking temporary injunctive relief to block enforcement of the rules while litigation goes forward.

The lawsuits are Chamber of Commerce et al. v. DHS et al., Case No. 20-CV-7331 (N.D. Ca., October 19, 2020), which challenges both the DOL and DHS rules, and Purdue, et al. v. Scalia, Case No. 1:20-CV-03006 (D.D.C., October 19, 2020) and ITServe Alliance Inc., et al. v. Scalia, Case No. 2:20-CV-14604 (D.N.J., October 16, 2020), which focus specifically on the DOL rule. 

Background on the challenged DOL and DHS rules 

On October 8, 2020, DOL and DHS issued companion rules targeting employment-based immigration, and particularly the H-1B program. The rules were issued as interim final regulations, bypassing public notice and comment. The agencies justified expedited review and implementation of the rules on the grounds that they were necessary to support U.S. workers amid the economic impact of the COVID-19 pandemic. The DOL rule took effect immediately on October 8 and the DHS rule is slated to take effect 60 days after publication, on December 7. 

The DOL rule restructures the prevailing wage system for H-1B, E-3, and H-1B1 nonimmigrant cases and the PERM labor certification program, resulting in significantly higher government prevailing wage minimums for foreign professional workers. The regulation did not disturb the ability of employers to use private wage survey data. The rule applies to DOL-issued wages only, and not those obtained from a private survey. 

The companion DHS rule is focused exclusively on the H-1B program. It introduces stricter eligibility criteria for H-1B specialty occupations, places new restrictions on the placement of H-1B workers at third-party worksites, and reinstates evidentiary policies that had been rescinded earlier this year, among other changes. 

What’s next for the DOL and DHS regulations

The plaintiffs in all three cases are requesting preliminary injunctive relief to block enforcement of the regulations while the lawsuits proceed, though it may be several weeks or more before courts rule on those requests. In the meantime, the DOL rule will remain in effect; the DHS rule is set to take effect on December 7. 

Fragomen is closely following the implementation of the DOL and DHS rules and all related litigation.  We will issue further clients alerts as developments occur. 

This alert is for informational purposes only. If you have any questions, please contact the immigration professional with whom you work at Fragomen.