[Article written by Benjamin Hu, Esq. as Of Counsel to the Ganey Law Group]
A Federal District Court has struck down two Trump-administration regulations that unfairly limit the H-1B program, and which required employers to pay inflated wages to foreign workers. The U.S. District Court for the Northern District of California vacated the interim final rules of Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States (from the Department of Labor) and Strengthening the H-1B Nonimmigrant Visa Classification Program (from the Department of Homeland Security).
With the District Court invalidating opinion, the DOL and DHS rules can be appealed.
Both interim final rules were implemented without a notice-and-comment period, citing a procedural exception due to the COVID-19 pandemic. The District Court disagreed and set aside both interim final rules.
The DHS rule would have gone into effect starting 2020-12-07. The DOL rule went into effect immediately upon publication. Under these rules, the required wages paid to any H-1B foreign specialty occupation worker would rise. The DOL rule specifically redefined the wage rates, increasing wage levels by approximately 28 percentile points.
| Wage Level | Pre-Rule Percentile | Post-Rule Percentile |
| 1 | 17 | 45 |
| 2 | 34 | 62 |
| 3 | 50 | 78 |
| 4 | 67 | 98 |
With the District Court invalidating opinion, the DOL and DHS rules can be appealed. The Trump administration previously has appealed and prevailed on similar invalidations, including its Public Charge new immigration policies. Additionally, the rule could potentially be reintroduced by merely following the necessary 30-day notice-and-comment period, which is still barely possible in the remaining time before a Biden administration.
