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Federal Court Blocks Enforcement of New H1B Interim Rule

On December 1, 2020, the court in Chamber of Commerce, et al., v. DHS, et al., found that the DHS and DOL H-1B wage rules were “promulgated in violation of 5 U.S.C section 553(b).” According to the American Immigration Lawyers Association (AILA), “The U.S. District Court for the Northern District of California set aside the DHS interim final rule, Strengthening the H-1B Nonimmigrant Visa Protections for the Temporary and Permanent Employment of Certain Aliens in the United States.” Similarly, on December 3, 2020, the U.S. District Court for the District of New Jersey issued a preliminary injunction in ITServe Alliance, Inc., et al. v. Scalia, et al., No. 20-cv-14604, applying to the plaintiffs in that case.

DHS released the Strengthening of the H-1B Nonimmigrant Visa Classification Program Interim final rule in October 2020, reassessing the interpretation of “Specialty Occupation” and DOL enacted the Strengthening Pay Protections in the United States Interim Final Rule for the Temporary and Permanent Jobs of Certain Foreigners, amending the regulations regulating permanent worker certifications and labor requirements. Also released in the Federal Register on October 8, 2020, was the DOL IFR, Improving Pay Protections for the Temporary and Permanent Work of Such Aliens in the U.S.

In response to the court’s order setting aside the IFR, the DOL’s Office of Foreign Labor Certification (OFLC) announced a timeline by which it will be updating the FLAG system to incorporate the pre-IFR wage data. Specifically, the Department will make changes to the FLAG system modules to replace the 10/8/2020-6/30/2021 wage source year data that was implemented under the IFR with the OES prevailing wage data that was in effect on October 7, 2020.

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