On December 01, 2020, Judge Jeffrey S. White of the United States District Court for the Northern District of California declared that two rules from the Department of Labor (DOL) and the Department of Homeland Security (DHS) were violating the Administrative Procedures Act (APA).

What were the rules, and what were their significance?

The rule struck down from the DOL was titled “Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States” and was effective since October 08, 2020. The rule increased salary requirements for H-1B, H1-B1, E-3, and PERM labor cases. The argument behind the drastic wage increase was because the DOL believed that the existing wage levels were so low that they could have created an opportunity for employers to hire and train foreign workers at wages below U.S. counterparts. However, by increasing the wages to such high levels, the DOL was effectively barring employers from hiring foreign workers whose skills were necessary for the work required.

The rule struck down from the DHS was titled “Strengthening the H-1B Nonimmigrant Visa Classification Program” and was planned to be put into effect starting December 07, 2020. This rule would have altered who would be allowed to have access to an H-1B visa by increasing the skill level necessary for eligibility under the category of a “specialty occupation.” Even further, the rule would have reduced the validity of an H-1B visa from three years to one year. According to Stuart Anderson from Forbes, “company executives and university personnel said the DHS rule would cause data scientists, software engineers, medical personnel and others to leave the United States” and would also create barriers for international students.

Why were the rules struck down?

The Court ultimately declared that these two rules were unlawful because they were placed into effect without the procedural requirement set out in the APA of providing a 30-day notice and opening up the rules for public comment.

The DOL and DHS used the COVID-19 pandemic as reason to invoke the “good cause exception” in the APA, which allows new rules to be issued without notice and comment. However, Judge White agreed with the Plaintiff’s argument that because of the extended delay between the adverse effects on employment due to the COVID-19 pandemic and the issuance of the rule, the rules published could not be directly tied to the emergency. Moreover, although the DOL and DHS used the high unemployment rate during the pandemic to show that the emergency was tied to the rules published, the Court agreed with the Plaintiff that the effect of the COVID-19 pandemic on unemployment must be considered based on the type of jobs held by H-1B workers, where there was little increase in unemployment.

Even further, the language Trump used in Proclamation 10052 that encouraged the changes to H-1B visas due to the COVID-19 outbreak was almost identical to the language he used in Executive Order 13788 “Buy American and Hire American” made in 2017. This created suspicion that the change in regulations was not made in direct response to the emergency at hand, but rather was in the works for several years.

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