On Tuesday December 1st, U.S. District Judge Jeffrey White issued a summary judgement setting aside recent harmful rules issued by the Department of Labor (“DOL”) and Department of Homeland Security (“DHS”). Judge White was the judge who enjoined USCIS from increasing filing fees, and he also previously enjoined the administration in part from applying the June 22, 2020 Presidential Proclamation related to NIVs. So, he was no stranger to immigration issues or determining that the administration had over-reached in its efforts to alter immigration policy.
We had previously communicated on the likelihood of success on the merits related to striking down these rules. However, we originally thought that a temporary injunction would be the most likely outcome. Instead, Judge White issued a final decision on a motion for summary judgement to strike down both regulations in full. A review of the decision shows how well reasoned and clearly the Judge viewed the agency action. In short, there was no rationale for the claimed emergency on the part of either agency, and the Judge determined the lack of action for months on these issues while the pandemic unfolded, coupled with the fact the administration had floated these changes as new policy directions before Covid-19 washed on our shores, demonstrated the lack of emergency and thus these rules should have properly received regular notice and comment periods.
As of the date of the decision, USCIS cannot implement their regulation scheduled to take effect next Monday December 7th. That Interim Final Rule changed the definition of “specialty occupation” and limited off-site workers to one-year H-1B approvals. Additionally, as of the date of the decision, DOL is no longer able to apply the October 8th increased wage calculations to LCAs or Prevailing Wage requests. The July 2020 wage calculations remain publicly available and as a result we expect to return to using those wage rates immediately unless advised differently. It remains to be seen what response each agency will have, as they could appeal the decision and seek a stay of the lower court’s decision, or they could attempt to reintroduce the regulations in some other fashion, or they could just simply capitulate. Our obvious hope is that they see the “writing on the wall.” From the outset of this litigation, our firm along with other experienced immigration attorneys recognized that these regulations were illegally introduced and would be struck down. We expect an appeal to a higher court will also end in the same outcome. This case is akin to the many voter fraud cases litigated by the President, where there isn’t truly a rationale to claim or evidence supporting the argument being made, and in this case the evidence if anything has been directly construed against the government.
One immediate unknown is what is our recourse for prevailing wages we received based on the October 8th wage data – for those cases that are time sensitive, we may need to accept the erroneous wage decision, but for others, we may be forced to reapply for a valid wage rate until they set up a mechanism to reissue the erroneous decisions. We will continue to monitor this evolving situation, and advise our clients if we see additional concerns from new agency actions or attempts to appeal.
The Team at Brown Immigration Law
** This newsletter/memo is provided for informational and discussion purposes only. It does not act as a substitute for direct legal contact on an individual basis **