MUMBAI: A bunch of US universities and nonprofits emerged victorious in a lawsuit filed by them against a provisional definitive rule issued by the Department of Labor (DOL), which went into effect October 8. This rule, which was put into accelerated mode and introduced almost overnight, actually walked wages for H-1B workers, at all levels, over 40%.
As reported by TOI earlier, 17 plaintiffs who included Purdue University, University of Michigan, University of Denver, Chapman University, Bard College, Arizona State University, Indiana University, and some nonprofits have filed this lawsuit in the United States District Court of Columbia. They were pro-bono represented by the American Immigration Lawyers Association (AILA) and eminent immigration lawyers.
The rise in wages has had a negative impact not only on the technology sector, but also on education and research institutions and smaller hospitals. For example, the University of Michigan in the lawsuit pointed out that if the required salary for each employee were increased by $ 2,500 on an annual basis, the total increase in annual salaries (excluding benefits) would be conservatively $ 1 million. which is unsustainable.
“The judge agreed that the poorly drafted and improperly issued rule did not comply with the procedural requirements for setting the rules and was substantially arbitrary, erroneous and irrational and ordered the DOL to reissue the prevailing wage determinations issued under the rule, “Says AILA.
To date, in all three cases filed against the DOL’s provisional final rule, the verdict has gone in favor of the plaintiffs, either by quashing the rule or by granting a preliminary injunction.
The Administrative Procedure Act requires public notice and a comment period. Comments from the public are reviewed and an appropriate process is normally followed before the rules are implemented. This process can take several months.
In all three cases, U.S. district courts found that by not allowing a period of notice and comment before publishing the interim final rule, the DOL denied plaintiffs and the general public these important protections.
In this case, Judge Emmet G. Sullivan stated that the DOL did not sufficiently justify its prediction that the notice and comment procedures would be contrary to the public interest. “In any event, the DOL did not provide any evidence in the minutes to support its prediction that there would be a ‘massive rush’ to evade the provisional final rule if the DOL provided notice and comment,” the issued order states. on December 14.
Judge Sullivan went one step further than previous orders from the two district courts. He ordered the DOL to reissue all wage determinations issued after 8 October, under the now invalidated rule.
Charles Kuck, former president of AILA and managing partner of Kuck Baxter’s immigration law firm, said, “DOL issued this rule knowing it was not in compliance with federal law, creating havoc in an already complicated situation. Visa and residence processing scheme. DOL is now being ordered to reissue all these non-compliant wages quickly and efficiently to ensure that the damage it has created in its attempt to pander to the current administration is quickly corrected.
Greg Siskind, member of the AILA board of governors and founding partner of Siskind Susser’s immigration law firm, added: “As today we celebrate man’s great achievement in the rapid development and release of a vaccine that will save millions of lives around the world. world – a vaccine in which immigrant scientists have played a vital role – we are excited about today’s news about the court order. The illegal rule at the heart of this case makes it impossible for many employers to hire those scientists , as well as doctors and nurses and so many others. Today’s decision reminds people how critical these global workers are to our country. ”
However, the DOL’s recently published autumn agenda contains a proposal to introduce the wage increase rule as a final rule soon. This can be done by remedying the shortcoming of not reviewing public comments prior to implementation, which was the basis for the provisional final rule that was overruled by the district courts.
Despite several legal setbacks, the Trump administration continues to pursue the finalization of a series of regulations that would significantly affect H-1B and other employment-based immigration programs, including a revised prevailing wage rule. The Trump administration plans to enforce these regulations before Biden’s inauguration on January 20, 2021, although it is not yet clear whether it will be able to do so. The new administration could try to postpone the implementation of these last-minute regulations, ”Mitch Wexler, partner of Fragomen, a global immigration law firm, told TOI.