Another court has issued an injunction against the enforcement of the Trump administration's H-1B policies that would raise minimum salary requirements for foreign professionals. In a legal challenge from various technology consulting firms, U.S. District Judge Stanley R. Chesler of New Jersey found that policy was procedurally deficient since it bypassed the standard procedures laid out in the Administrative Procedure Act. The DOL pointed to the "good cause" exception as its reasoning for bypassing those procedures, claiming that the COVID-19 pandemic created an economic emergency and high unemployment rate.
ITServe is an alliance of technology consulting firms which filed the lawsuit eight days after policy went into effect. The alliance fears that the policy will upend their business and force them to make layoffs and move operations abroad – which is the opposite intent of the Trump administration's policy in the first place.
As we discussed last week, a California federal judge was the first to strike down the policy for similar reasons, in a case brought by the U.S. Chamber of Commerce and other business groups. There is also a third challenge pending in D.C. federal court.
On the same day the New Jersey federal court ruled, the DOL released a plan to address wage level issues, including:
- A timeline for reverting to Oct. 7 OES wage data (effective now),
- The timing of updates to the LCA program for calculating OES prevailing wages,
- Setting Dec. 9, 2020 as the date that LCAs may again be filed using OES wage data.
Also, the National Prevailing Wage Center is suspending work on pending prevailing wage determinations (PWD), and will resume on Dec. 15, using the pre-Oct. 8 wage data. Employers are also allowed to request review of PWDs issued using Oct. 8, 2020 through June 30, 2021 wage levels. Those requests can be submitted through Jan. 4, 2021. More information can be found here.
Check back to our Workplace blog as we continue to monitor and report on the latest developments.
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