Major Flaw in New DOL Rule Taken to Court
By: Rachel Horner
Only a few weeks after its publication, the DOL’s new IFR, “Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States,” which restructured the wage level for H-1B employees, has been challenged to court twice. The first lawsuit, ITServe Alliance, Inc. v. Scalia, argued that the data behind the rule is inaccurate. Another lawsuit has since followed suit, led by the American Immigration Lawyers Association.
According to Forbes, the lawsuit, entitled Purdue University et. al. v. Eugene Scalia et. al., argues that the new DOL rule unfairly mandates an annual salary of $208,000 for over 18,000 occupations. Because the percentiles for many occupations have been increased to a degree where the Department of Labor is unable to calculate salaries for these occupations, this rule sets the minimum salary at $208,000. This would apply to occupations of all experience levels and variety, from entry-level software developers to experienced medical doctors.
The justification the DOL gave for publishing the rule as an IFR is being questioned by this lawsuit as well, as the way in which the DOL implemented the rule allowed it to go into publication without notice and prior feedback. AILA pointed out that while the DOL claims the rule was created in response to the COVID-19 pandemic, they waited 6 months after unemployment was at its peak to publish the rule— long after everyone had realized the impact the pandemic would have on the economy.
The lawsuit, if successful, could prove the IFR had been published prematurely, and without any practical consideration. Had the DOL waited for feedback, they could have noticed the flaw in their data and restructured it so that each occupation was given an accurate minimum salary. In fact, the point of the DOL restructuring the wage level was to base it on a new means of tracking data. If the new data cannot be used for close to 20,000 occupations and instead gives the same minimum mandated salary, can the DOL really say this is a better system than its previous one?
The lawsuit is expected to be handled in court on November 13, 2020, with many more other lawsuits possibly following its footsteps.