A pair of recent federal court decisions provides an optimistic outlook for the future of employment-based immigration.

First, the U.S. District Court for the Northern District of California has invalidated new policies rushed through by Department of Homeland Security (DHS) and Department of Labor (DOL) that restricted employment-based immigration. In October 2020, the DHS and DOL fast-tracked new administrative rules that did not follow the Administrative Procedure Act’s normal notice and comment process. These rules primarily sought to:

• Change the DOL formula for calculating prevailing wages, which substantial increased the amount employers had to pay H-1B, EB-3, and H-1B1 workers, as well as individuals being sponsored for permanent residency using the PERM labor certification process. This rule went into effect on October 8, 2020.
• Create new restrictions for H-1B workers by significantly narrowing the definition of specialty occupation, placing additional restrictions on third-party site placement, and increasing evidentiary standards. This rule was set to go into effect on December 7, 2020.

This ruling determined that the government did not show good cause to bypass the normal rulemaking process and immediately invalidated these new rules. We are optimistic this will return DOL processing to the pre-October 8^th norm. However, we expect the government to appeal this decision, which leaves open the possibility for more future changes. It is also unclear how the DOL will apply this ruling in terms of prevailing wage determinations that were issued since October 8, 2020.

In a separate decision, the U.S. District Court for the District of Columbia upheld DHS’s Optional Practical Training (OPT) and STEM OPT programs. The Washington Alliance of Tech Workers sought to have these work programs for students invalidated as part of 2016 lawsuit. This decision leaves the programs in place as is, but this decision may also be appealed in the future.

Gee & Zhang LLP is encouraged that these recent court decisions and the upcoming change in presidential administration will help preserve important avenues for employing foreign nationals. In the interim, it is important that employers carefully plan for future nonimmigrant renewals, green card sponsorships, and student-to-work visa transitions to avoid potential pitfalls as these matters continue to evolve. For further assistance, please contact Gee & Zhang LLP.