The Covid-19 pandemic’s effect on domestic unemployment isn’t enough to justify regulatory shortcuts taken by the Departments of Homeland Security and Labor in implementing significant changes to the H-1B visa program, a federal judge ruled, setting aside the Trump administration measures.
The “good cause” exception to the Administrative Procedure Act is usually evoked in the event of emergencies, and the agencies’ failure to act until six months into the pandemic undercuts their use of “‘skyrocketing’ and ‘widespread’ unemployment rates as a basis to find ‘immediate’ action was necessary,” Judge
“Defendants failed to show there was good cause to dispense with the rational and thoughtful discourse that is provided by the APA’s notice and comment requirements,” the Oakland federal judge concluded.
Business groups and universities, including the U.S. Chamber of Commerce, the National Association of Manufacturers, and Cornell and Stanford Universities, sued the agencies Oct. 19 over a pair of interim final rules that required employers to pay higher wages to the specialty occupation visa workers, and narrowed which jobs qualify as a specialty occupation, among other changes.
Dispensing with the typical 30-day waiting period, White noted, the Labor Department’s wage rule went into effect immediately upon its publication in the Oct. 9 Federal Register. The DHS rule was set to go into effect Dec. 7.
“This decision ensures the continued viability of the H-1B program, which supplies work authorization to more than 580,000 individuals in the U.S.,” said Paul Hughes, an attorney for the plaintiffs. “The administration’s attempt to invoke Covid-19 as justification for displacing this program was not justified by either the facts nor the conduct of the administration. Rather, there’s every indication that this was a use of pretext to adopt a policy that the administration had said it had planned to do for years, long before Covid-19.”
White granted partial summary judgment to the plaintiffs, and ordered the rules be set aside on the basis that they were promulgated in violation of the APA.
William G. Gaede III and Paul Hughes with McDermott Will & Emery LLP represented the plaintiffs. The Justice Department represented the DHS and the DOL. Representatives for the agencies didn’t immediately respond to emailed requests for comment.
The case is Chamber of Commerce et al v. Dep’t of Homeland Sec. et al, N.D. Cal., No. 4:20-cv-07331, order 12/1/20.