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December 3, 2020

Judge throws out Trump Administration's Interim Final Rule Restricting H-1B Visas

A Federal judge has thrown out Trump’s H-1B and high prevailing wage regulations.

The prevailing wage rule, proposed by the Department of Labor (DOL), was implemented in October, while the DHS rule for specialty occupation and limited validity of H-1B visas for third-party firms was to take effect Monday, Dec. 7, 2020.

Judge Jeffrey White

Just days before significant restrictions on H-1B visas were due to go into effect, Judge Jeffrey White declared that USCIS and Department of Labor regulations failed to follow transparency procedures and so did not meet the legal requirements for an Interim Final Rule.

Not surprisingly, the same judge shot down a similar Presidential Proclamation that attempted to restrict still further the H-1B visa process, on the same grounds.

An Interim Final Rule circumvents the normal notice and comment process that regulations use to allow stakeholders to weigh in on how a new regulation may impact them. An agency is then required to review and address any comments.

In order to proceed without carrying out that normal process, the reasons behind any Interim Final Rule must meet high standards, such as proving a national emergency. In this case, however, the Government could not prove sufficient evidence of such an emergency, as the Trump Administration’s arguments were focused on protecting the domestic economy following the COVID pandemic, which did not satisfy Judge White.

Two other lawsuits in New Jersey and Washington, D.C., remain pending on the same type of issue. This is emerging as a common pattern for the Trump Administration that has used a strategy of imposing its political will over the nation’s long-standing legal process. The courts have routinely denied such proclamations and regulations.

You can read the Order in full here: https://www.courtlistener.com/recap/gov.uscourts.cand.367484/gov.uscourts.cand.367484.73.0.pdf

Further information on the case from the Chamber of Commerce website: https://www.chamberlitigation.com/cases/chamber-commerce-v-us-department-homeland-security

About the author 

Jon Velie

About the author: Jon Velie has practiced Immigration law since 1993. He is CEO of OnlineVisas.com., the intelligent Immigration platform. Jon is an Amazon number one best-selling author of H1B Visa: Application & Approval, is regularly covered by major media and has won a number of international awards. Jon can be contacted at jon@onlinevisas.com or 405-310-4333 office or 405-821-5959 mobile.

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