As reported by TOI earlier, 17 plaintiffs which included Purdue University, University of Michigan, University of Denver, Chapman University, Bard College, Arizona State University, Indiana University, and a few non-profits had filed this lawsuit with the US district court of Columbia. They were represented pro-bono by the American Immigration Lawyers Association (AILA) and prominent immigration attorneys.
The wage hike adversely impacted not just the technology sector, but also educational and research institutions and smaller hospitals. For instance, University of Michigan, in the lawsuit pointed out that if the required wage for each employee is increased by $2,500 on a yearly basis, the total increase in annual salaries (excluding benefits) would conservatively be one million dollars, which is unsustainable.
“The judge agreed that the poorly-drafted, improperly-issued rule did not comply with the procedural requirements for rule-making and was substantively arbitrary, incorrect, and irrational and ordered the DOL to reissue prevailing wage determinations that were issued under the rule,” states AILA.
Till date, in all the three lawsuits filed against DOL’s interim final rule, the verdict has gone in favour of the plaintiffs – be it by way of the rule being set aside or a preliminary injunction being granted.
The Administrative Procedure Act requires a public notice and comment period. Comments from the pubic are vetting and a proper process is normally followed before rules are implemented. This process can take several months.
In all three cases, the US district courts have held that by not allowing for a notice and comment period, before publishing the interim final rule, the DOL has denied the plaintiffs and the public in general these important protections.
In this case, Judge Emmet G. Sullivan held that the DOL did not sufficiently justify its prediction that advance notice and comment procedures would have been contrary to the public interest. “In any event, the DOL has failed to provide any evidence in the record supporting its prediction that there would be a ‘massive rush’ to evade the interim final rule, if the DOL had provided advance notice and comment,” states the order issued on December 14.
Judge Sullivan went a step further than the earlier orders of the two district courts. He has ordered DOL to re-issue all wage determinations issued after October 8, under the now invalidated rule.
Charles Kuck, former AILA President and managing partner at the immigration law firm of Kuck Baxter said: “DOL issued this rule knowing it was not in compliance with federal law, creating havoc in an already complicated visa and residency processing scheme. The DOL is now ordered to reissue all of these non-compliant wages rapidly and efficiently to ensure that the damage it created in its attempt to pander to the current administration is quickly rectified.”
Greg Siskind, Member of the AILA Board of Governors and founder partner at the immigration law firm of Siskind Susser added, “As we’re celebrating today the great achievement of man in rapidly developing and releasing a vaccine that will save millions of lives around the world – a vaccine in which immigrant scientists played a critical role – we are thrilled with today’s news of the court order. The illegal rule at the center 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 fall agenda issued recently by DOL contains a proposal to shortly introduce the wage hike rule as a final rule. This can be done by curing the defect of not vetting public comments before implementation, which was the basis for the interim final rule being set aside by the district courts.
“Despite several legal setbacks, the Trump Administration is continuing to pursue the finalization of a set of regulations that would significantly affect the H-1B and other employment-based immigration programs, including a revised prevailing wage rule. The Trump Administration plans to have these regulations in place before the Biden inauguration on January 20, 2021, though it is not yet clear whether it will be able to do so. The new administration could seek to postpone the implementation of any such last-minute regulations,” Mitch Wexler, partner at Fragomen, a global immigration law firm told TOI.