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Law360 (November 9, 2020, 7:29 PM EST) -- The federal government slammed a suit by business groups and universities challenging how changes to H-1B temporary worker visa requirements were implemented, arguing that the rules needed to be released without notice to quickly address COVID-19 unemployment.
The U.S. Departments of Homeland Security and Labor told a California federal court on Friday that department officials reasonably determined that two new rules requiring foreign workers to be paid higher wages and narrowing the definition of specialty occupations eligible for H-1B visas needed to be issued without giving the public an opportunity to comment on the rules to protect American workers.
If U.S. employers had been given advance notice that the U.S. Department of Labor would be changing how it calculates the wages companies should pay foreign professionals so that they are paid comparable to American workers in similar positions, they might have tried to work around the new rule, according to a brief.
Therefore, the court should toss the suit's claims that DHS and DOL violated federal law by not giving the public advance notice of the rules before they were finalized, the departments said.
"Millions of U.S. workers have been drastically affected over the past few months by the national emergency created by the COVID-19 pandemic, which has resulted in a dramatic increase in unemployment rates and which threatens immediate and ongoing harm to the wages and job opportunities of U.S. workers," they said.
DHS and DOL released two final interim rules overhauling the H-1B visa program without providing notice-and-comment periods in October. The DHS rule narrows the definition of a specialty occupation to include only jobs that require specific educational degrees for employment, and the DOL rule mandates higher wages for foreign workers.
In addition, DHS revised the definition of the "employer-employee" relationship required for a business to sponsor an H-1B worker, reviving a former policy that the government agreed to rescind as part of a settlement after a federal judge struck down the agency's memo.
Less than two weeks after the rules were issued, the U.S. Chamber of Commerce filed suit along with the National Association of Manufacturers, Stanford University and other universities and business groups, arguing that the rules were unlawful and could exacerbate shortages of much-needed health care workers during the coronavirus pandemic.
Under the Administrative Procedure Act, government agencies are required to give businesses and individuals advance notice of proposed rules so they have the opportunity to comment on the policies, and the agencies must take those comments into consideration when issuing final rules.
But DHS and DOL argued Friday that they didn't violate the APA because the pandemic gave them a sufficient reason not to give advance notice of the rule changes.
"Because of the dramatic impact of the COVID-19 crisis on the U.S. labor market and the need for immediate action to carry out their statutory mandates to protect U.S. workers, both agencies reasonably concluded that advance notice and comment would be impracticable in light of the harms caused by the ongoing COVID-19 pandemic and resulting economic crisis," the departments said.
Counsel for the business groups and universities and the government did not respond to requests for comment on Friday.
The business groups and universities are represented by Paul W. Hughes III and William G. Gaede III of McDermott Will & Emery LLP.
The government is represented by Jeffrey Bossert Clark, Brad P. Rosenberg, Brigham J. Bowen, Carol Federighi, Alexandra R. Saslaw and Laurel H. Lum of the U.S. Department of Justice's Civil Division.
The case is Chamber of Commerce et al. v. U.S. Department of Homeland Security et al., case number 4:20-cv-07331, in the U.S. District Court for the Northern District of California.
--Additional reporting by Suzanne Monyak. Editing by Haylee Pearl.
For a reprint of this article, please contact reprints@law360.com.
