A Federal judge has struck down a number of new Department of Labor regulations covering Labor Condition Applications as the result of a lawsuit by the National Association of Manufacturers. The court struck down the provisions because the Department of Labor violated various procedures of the Administrative Procedures Act in issuing the regulations. The actual decision will be posted at our web site this week. The court also noted that there appeared to be genuine substantive questions regarding whether the regulations reflected the will of Congress.
Some of the regulations struck down include the following:
Requiring employers to document an objective wage system for all employees, regardless of whether they are H-1B employees.
Requirement that employer pay government employee per diem expense rates to employees at temporary work sites for less than 90 days.
The cumbersome “90 day” rule which limits employers to a cumulative period of 90 days for employees to work off site.
It is important to note that other provisions in the regulations remain effective. However, the Department of Labor will be unable to enforce these provisions and cannot punish employers who choose to ignore the regulations. However, the Department of Labor is expected to appeal the ruling.
Kudos go to the National Association of Manufacturers and the Paul Hastings law firm for the valiant efforts in this battle.
Requirement that employers document the actual wage paid to all person in the specific employment held by the H-1B employee
Postings required at temporary work sites if within the area of intended employment but not listed in the LCA
Disclaimer: This newsletter is provided as a public service and not intended to establish an attorney client relationship. Any reliance on information contained herein is taken at your own risk. The information provided in this article has not been updated since its original posting and you should not rely on it until you consult counsel to determine if the content is still valid. We keep older articles online because it helps in the understanding of the development of immigration law.