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Key Points

  • A third federal judge has ruled against the DOL’s interim final rule on H-1B eligibility and wages
  • US District Judge Emmet G. Sullivan ruled that the DOL did not follow proper APA rulemaking procedures when it issued the interim final rule on October 8, 2020
  • DOL instructed to reissue PWDs that were issued after the H-1B interim rule’s implementation
  • The H-1B interim final rule remains suspended
  • Updates on ongoing litigation will be provided as available

Overview

On December 14, 2020, a federal judge in Washington, DC ruled that the Department of Labor (DOL) did not follow proper rulemaking procedures when it implemented an interim final rule in October 2020 on H-1B wage requirements.

What are the Changes?

US District Judge Emmet G. Sullivan concurred with federal judges in California and New Jersey who ruled earlier in December 2020 that the DOL did not follow proper rulemaking procedures when it implemented an interim final rule on October 8, 2020 raising minimum wage requirements for permanent labor certifications (PERM) and H-1B, H-1B1, and E-3 visa categories. Both courts determined that the agency bypassed mandatory rulemaking procedures in accordance with the Administrative Procedure Act (APA) when it issued the interim final rule without the requisite 30-day public and public comment period. Echoing the court orders from the other two federal judges, Judge Sullivan instructed DOL to reissue prevailing wage determinations (PWDs) that were issued after the agency implemented its interim final rule on October 8, 2020.

Looking Ahead

The prevailing wage rule remains suspended following the latest court decision.

Updates for ongoing H-1B litigation will be provided as available.

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