By Sarah Martinson

Law360 (March 12, 2020, 3:35 PM EDT) -- The Fourth Circuit on Thursday pushed back oral arguments from next week to May in a case challenging H-2B visa rules after being informed that U.S. Department of Justice attorneys in the Washington, D.C., office had tested positive for the coronavirus.

DOJ trial attorney Kathryne M. Gray told the circuit court on Wednesday that while neither she nor her co-counsel are experiencing any symptoms associated with the disease known as COVID-19, the virus had spread to her office after other attorneys returned from travels to courts in regions that have been heavily hit with the novel coronavirus.

"This has obviously raised concerns about official travel by air for court appearances. As of the time of writing, we are waiting on further guidance about what this means for Department of Justice employees," Gray wrote.

Gray said that in the last 14 days, she and her co-counsel have traveled to places affected by the coronavirus, including Boston, Chicago, Richmond, Virginia, and cities in Colorado. She also noted that she lives with a student who attends college in Cambridge, Massachusetts, which is one of many schools that have moved their classes online to contain the spread of the virus.

"The state of Massachusetts, where I reside and am temporarily working, has now declared a state of emergency due to the large increase of confirmed and presumptive cases, which doubled in a single day this week," Gray said.

The circuit court had originally scheduled March 17 to March 20 to hear industry groups appeal a Maryland federal court's September ruling concluding that the U.S. Department of Labor has the authority to regulate H-2B visas. The hearing has now been pushed back to May.

The decision upheld a 2008 DOL rule that requires businesses to obtain labor certification before filing H-2B petitions for foreign temporary nonagricultural workers with the U.S. Department of Homeland Security.

The appeals court asked attorneys in the case on March 9 to advise if they have symptoms such as a fever, cough and shortness of breath, if they were exposed to individuals who may have COVID-19 or if they visited areas where the virus has been confirmed.

Counsel for the industry groups told the court on March 9 that they had not experienced any COVID-19 symptoms in the prior 14 days and that they do not believe they were exposed to the virus. But the DOJ attorney came forward on Wednesday.

The spread of the coronavirus has been impacting state and federal courts across the U.S. New York state courthouses implemented new restrictions on entry into its buildings and a Seattle immigration court shut down on Wednesday.

On Thursday, a Texas county judge suspended all jury trials until the end of March, citing concerns about protecting due process and preventing the spread of the COVID-19 virus in the Houston area. Last week, a Washington federal court halted all in-court proceedings for the foreseeable future due to the more than 50 confirmed cases of the virus in the county.

Counsel for the industry groups and counsel for the DOJ did not respond to requests to comment on Thursday.

The industry groups are represented by R. Wayne Pierce of The Pierce Law Firm LLC and Leon R. Sequeira.

The government is represented by Joseph H. Hunt, William C. Peachey, Kathryne M. Gray, Erez Reuveni and Joshua Press of the U.S. Department of Justice.

The case is Outdoor Amusement Business Association Inc. et al. v. Department of Homeland Security et al., case number 18-2370, in the U.S. Court of Appeals for the Fourth Circuit.

--Additional reporting by Daniel Siegal. Editing by Jill Coffey.

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