Various Lawsuits filed against Department of Labor and the Department of Homeland Security re Changes to Work Visa and Employment Based Immigrant Visa Programs

A total of three lawsuits have been filed against the recently issued DHS and DOL  Interim Final Rule (“IFRs”).

 

One lawsuit was filed on Friday, October 16th against the DOL IFR which had set dramatically higher wage rates without following the notice and comment rulemaking procedures required under the Administrative Procedure Act (the “APA”).  The lawsuit seeks a preliminary and permanent injunction against the new rule, which was allegedly designed to price out the U.S. labor market H-1B visa holders and employment-based immigrants.  Plaintiffs for this lawsuit include ITServe Alliance, Dots Technologies, Iflowsoft Solutions, Kolla Soft, NAM Info, Precision Technologies, Smart Works and Zenith Services.  The lawsuit was filed in the U.S. District Court for the District of New Jersey.  Please click here to see a copy of the complaint.

 

Two more lawsuits were filed on October 20th. The first of these lawsuits was filed by the U.S. Chamber of Commerce, along with the National Association of Manufacturers, the Presidents’ Alliance on Higher Education and Immigration, and other organizations and universities that include Stanford, Cornell and the University of Southern California. The complaint was filed in the U.S. District Court for the Northern District of California against both IFRs.

 

The language of the complaint reads as follows: “These rules are extraordinary: if left unchecked, they would sever the employment relationship of hundreds of thousands of existing employees in the United States, and they would virtually foreclose the hiring of new individuals via the H-1B program. They would also gut EB-2 and EB-3 immigrant visas, which provide for employment-based permanent residence in the United States.”  The complaint continues “[b]ecause defendants have no ‘good cause’ to dispense with the APA’s most fundamental protection for the regulated public, the Court should swiftly set these Rules aside.”

 

The complaint focuses on two particular aspects of these IFRs.  First, the complaint explains the required salary “increases are staggering” when one compares the prevailing wage requirements under the prior system to those mandated under the new DOL rule.  Second, the complaint raises the potential for the DHS rule to destroy any practical use of the H-1B visa category by disqualifying large numbers of talented and highly educated individuals, including many current H-1B visa holders.  Plaintiffs’ attorneys argue “The requirement is [...] contrary to the purpose of the H-1B statute, which is to balance the needs of the American economy and American labor, not to make it impossible to hire needed temporary foreign workers.  For new and emerging fields, it will be difficult, and often impossible, to show that a particular degree is ‘always’ required for a certain occupation.”

 

Please click here to see a copy of the complaint.

 

The second of these lawsuits was filed by Purdue University, the University of Michigan and several other universities and organizations, including the Information Technology Industry Council.  This complaint was filed against the DOL IFR in the U.S. District Court for the District of Columbia.  In the complaint, Plaintiffs claim the DOL rule will drive away international students by making it unlikely they could work in the United States after graduating. Please click here to see a copy of the complaint.

 

Both of the October 20th lawsuits emphasized the “reliance interests” for employers and foreign nationals in the United States and cite to the unusual rush to publish the DOL IFR and bypass the standard review process.  In the coming days and weeks, federal judges in California and the District of Columbia will hear arguments in these two cases.

 

Please see our prior blog posts for more information on these rules. A link is included here.

 

If you have any further questions about these IFRs or lawsuits, please call Blaskow Legal, PLLC at 703-879-5910.