On October 20, 2020, the Presidents’ Alliance on Higher Education and Immigration joined with a coalition of business organizations and higher education institutions and, represented by Paul Hughes of McDermott Will & Emery LLP, filed a lawsuit against the federal government challenging: (a) the U.S. Department of Labor’s interim final rule, which makes unreasonable and arbitrary changes to the required minimum wage to employ H-1B workers; and (b) the U.S. Department of Homeland Security’s interim final rule, which would revise the definitions and standards for “specialty occupation” as well as “employer-employee relationship,” limiting petition validity for third-party placements. The promulgation of these rules significantly and adversely impacts the ability of higher education institutions to sponsor international researchers, staff, and faculty–all of whom serve critical roles on campus.
On December 1, 2020, the district court issued an order granting a partial summary judgement to the plaintiffs and setting aside both rules. In his ruling, Judge Jeffrey White concluded that the administration violated the APA’s notice and comment requirements.
On March 19, 2021, plaintiffs—including the Presidents’ Alliance—filed an amended complaint for declaratory and injunctive relief challenging the Department of Labor’s final wage rule and the Department of Homeland Security’s H-1B lottery rule.
On September 15, 2021 federal district court Judge Jeffrey White vacated a Trump-era rule that would have enacted significant barriers for international student alumni to apply for and receive H-1B status. The district court’s order also specifically cited the declaration of Miriam Feldblum, the Executive Director of the Presidents’ Alliance, in holding that colleges and universities had standing and could bring the legal challenge (page 6). You can read more about the decision at Forbes and the text of the decision here.
In early December 2021, the U.S. Department of Justice (DOJ) agreed to enter into settlement negotiations regarding a Trump-era rule that would have eliminated the H-1B visa lottery and replaced it with a salary-based eligibility system. The rule would have made it very difficult for recently graduated international students to gain H-1B status. Earlier in December, the DOJ also moved to voluntarily dismiss the appeal in the Chamber-led challenge against the rule (in which the Presidents’ Alliance was a plaintiff), and the Ninth Circuit granted the motion to dismiss. However, the administration could still issue its proposed regulation to revise the H-1B lottery rule with a wage prioritization system in general. The Presidents’ Alliance has advocated against this with the administration, and we will continue to track the situation.
As of December 22, 2021 DHS has officially withdrawn its H1-B rule, which would have eliminated the H-1B visa lottery and replaced it with a salary-based eligibility system. The rule would have made it very difficult for recently graduated international students to gain H-1B status.
- First Amended Complaint for Declaratory and Injunctive Relief (March 19, 2021)
- Plaintiffs’ Notice of Filing Amended Complaint (March 19, 2021)
- District Court Order Granting Partial Summary Judgement (December 1, 2020)
- Presidents’ Alliance Statement: Higher Education Prevails Against Federal Government Over Unlawful H1-B Regulations (December 1, 2020)
- Presidents’ Alliance Complaint (October 20, 2020)
- Presidents’ Alliance Statement on Complaint Filing (October 20, 2020)
- Declaration of Presidents’ Alliance Executive Director Miriam Feldblum in Support of Plaintiffs’ Motion for Preliminary Injunction (October 23, 2020)
- Plaintiff’s Motion for Preliminary Injunction (October 23, 2020)
- Reply in Support of Plaintiff’s Motion for Preliminary Injunction and Partial Summary Judgment (November 13, 2020)
- From 46 Leading Business Organizations and Companies (October 30, 2020)
- From the American Council on Education and 23 Other Higher Education Organizations (October 30, 2020)
- From the American Immigration Council (October 30, 2020)
- From New York University and Other Leading Higher Education Institutions (October 30, 2020)