MUMBAI: A lot of American universities and nonprofits emerged victorious in a lawsuit filed by them against a final interim rule issued by the Department of Labor (DOL), which went into effect on October 8th. This rule, which was put on a fast track and was introduced almost overnight, effective ride wages for H-1B workers, at all levels, by over 40%.
As reported by TOI earlier, 17 applicants which included Purdue University, University of Michigan, The University of Denver, Chapman University, Bard College, Arizona State University, Indiana University, and several nonprofits have filed lawsuits in US court. Colombia. They were pro-bono represented by the American Association of Immigration Lawyers (AILA) and prominent immigration lawyers.
Wage increases have had a negative impact not only on the technology sector, but also on educational and research institutions and smaller hospitals. For example, the University of Michigan, in the lawsuit, pointed out that if the salary required for each employee increases by $ 2,500 per year, the total annual salary increase (excluding benefits) would be conservative of $ 1 million, which unsustainable.
“The judge agreed that the poorly worded, improperly issued rule did not comply with the procedural requirements for the adoption of the rules and was substantially arbitrary, incorrect and irrational and ordered the DOL to reissue the prevailing salary determinations issued under the rule. , ”States AILA.
To date, in all three lawsuits against DOL’s provisional final rule, the verdict has been in favor of the applicants – either by annulling the rule or by granting a preliminary order.
The law on administrative procedure requires a public notification and a comment period. Public comments are examinations and a proper process is normally followed before the rules are implemented. This process can take several months.
In all three cases, the US district courts held that, by not allowing a period of notice and comment, prior to the publication of the final interim rule, DOL denied the applicants and the general public these important protections.
In that case, Judge Emmet G. Sullivan considered that DOL did not sufficiently justify its prediction that the prior notification and comment procedures would be contrary to the public interest. “In any event, DOL failed to provide any evidence in the file to support the prediction that there would be a ‘massive rush’ to evade the final interim rule if DOL had provided prior notice and comment.” , is specified in the order on December 14.
Judge Sullivan went a step further than the previous orders of the two district courts. He ordered the DOL to reissue all salary determinations issued after October 8, according to the now invalidated rule.
Charles Kuck, former president of AILA and executive partner at law firm Kuck Baxter, said: “DOL issued this rule knowing that it does not comply with federal law, wreaking havoc in an already complicated process. Visa and the residency processing scheme. DOL is now ordered to reissue all these non-compliant wages quickly and efficiently to ensure that the damage it has created in its attempt to repair the current administration is corrected quickly. ”
Greg Siskind, a member of the AILA Board of Governors and a founding partner of the immigration law firm Siskind Susser, added: in which immigrant scientists have played a critical role – we are delighted with today’s news about the court order. The illegal rule at the heart of this case makes it impossible for many employers to hire 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 autumn agenda recently issued by the DOL contains a proposal to introduce the wage increase rule as a final rule shortly. This can be done by remedying the defect of not examining the public comments before implementation, which was the basis of the final interim rule which was annulled by the district courts.
“Despite several legal hurdles, the Trump administration continues to seek to finalize a set of regulations that would significantly affect H-1B and other employment-based immigration programs, including a revised predominant wage rule. The Trump administration intends to have these regulations in place before the inauguration of Biden on January 20, 2021, although it is not yet clear whether it will be able to do so. The new administration could try to delay the implementation of any such state-of-the-art regulations, “Mitch Wexler, a partner at Fragomen, a global immigration law firm, told TOI.