Council Submits Amicus Brief Challenging Agency Failure to Undergo Notice and Comment Rulemaking


November 11, 2020

The American Immigration Council filed this brief in support of plaintiffs’ challenge to interim final rules (IFR) issued by the Department of Homeland Security (DHS) to change the H-1B regulations and by the Department of Labor (DOL) to change how the agency calculates prevailing wage rates in Chamber of Commerce v. U.S. Department of Homeland Security, 4:20-cv-7331-JSW (N.D. Cal., complaint filed Oct. 19, 2020). Both agencies claimed the impact of COVID-19 on the economy as the basis for invoking the “good cause” exception to the Administrative Procedure Act’s (APA) advance notice and comment rulemaking requirements.

The Council filed an amicus brief supporting plaintiffs’ preliminary injunction and summary judgment motion that DHS and DOL did not satisfy the stringent requirements necessary to sidestep notice and comment rulemaking. The Council’s amicus brief provides examples where U.S. Citizenship and Immigration Services and its predecessor, INS, made beneficial changes to a proposed rule in response to public comment before issuing a final rule. These examples stand in sharp contrast to the agency’s use of an IFR to make radical changes including a new regulatory definition of a “specialty occupation” which, if implemented, will result in jobs held by H-1B workers no longer qualifying for the H-1B category. As these examples demonstrate, agencies benefit when they hear from the public about such issues as flawed premises, impracticalities or inefficiencies, and lack of clarity in their proposals before they issue a final rule.

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