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DOL Wage Rules Litigation FAQs

Romish Badani

Bridge and our partners at ImmiPartner are committed to advocating for employers, which is why ImmiPartner will be co-counseling the immigration litigation firm Wasden Banias to pursue litigation against the newly implemented DOL wage rules. Wasden Banias has successfully challenged recent rule changes, and the firm believes this recent wage rule has been passed in violation of proper rulemaking procedures under the Administrative Procedures Act as well as in violation of existing immigration statutes. Please find answers to frequently asked questions regarding this litigation opportunity below. These FAQs will continue to be updated as questions and new information arise.

What are the legal grounds of the action?

There are various grounds upon which this case will be based, both procedural and substantive. The procedural violations, which we feel are especially strong in this matter, relate to violations of the Administrative Procedures Act and thereby unlawful rulemaking that has occurred. The underlying economic assumptions upon which this ‘emergency’ rule was passed are flawed, the government data collected is clearly incorrect, and the government failed to meet their bar in considering the economic impact and ripple effects caused by this rule change. On the substantive side, the rule is in contravention of established immigration statutes requiring four distinct wage levels among other contradictions.

What are the chances of success in the lawsuit?

We believe that the chances of success are high in this suit. This is further supported by the fact that the arguments that we are making in this lawsuit have been successful in other recent legal challenges in the Northern District of California and similar government actions have been found impermissible.

Are there any other deadlines we should be aware of?

It is imperative to make the decision to participate in the lawsuit as soon as possible the week of October 19, 2020. Once we have reached our goal in the number of plaintiff companies for the lawsuit, the attorneys will review all the members of the plaintiff class, and decide which companies to use as the lead plaintiffs to show the level of harm caused by this rule. The attorneys will then assist these lead plaintiffs in preparing declarations outlining how and why the Company will be harmed. We are hoping that this will happen within the next few days as we wish to file this suit by the end of the week of October 19th. The longer we wait the harder it becomes to show immediate harm which is needed to obtain an injunction. Any company wishing to join, even if not one of the lead plaintiffs, will be included in the case and will receive the benefit of any injunction that we will be seeking to stop this rule from being in effect.

What does the Company need to provide to be part of the plaintiff class in the lawsuit?

To be included in the lawsuit, the Company will need to sign a legal services agreement to engage the attorneys. After that, it will only need to provide limited information including its legal name and address to be included in the lawsuit. If selected as a lead plaintiff, then more information and documentation will be collected to demonstrate through documentary evidence the negative effects of the rule on the Company. Some of the facts that will be considered include the number of total employees at the Company, the number of employees who are working on affected visa types, how much of the company relies on critical technical and professional roles that must recruit international employees. The lawyers will help determine who will be strong lead plaintiffs.

Will there be costs to the Company to participate in the lawsuit as part of the plaintiff group?

Yes, there will be a reasonable flat rate fee (no hourly fees) associated with joining that will be split amongst the companies in the plaintiff group. This will cover the suit all the way up until the appeals process, even after an injunction has been issued.

When could we expect that the injunction will be filed?

We are aiming to have the Complaint ready and filed by this Friday, October 23, 2020. After that, the request for an injunction can be ready to be filed by early next week.

If successful, what does the result look like and mean?

Success in our opinion will consist of each named company plaintiff receiving an injunction allowing the prior, lower, wage levels to be used for each H-1B, E-3, and PERM based Green Card case. Then ultimately to have our lawsuit play a role in the government deciding to abolish the rule in its entirety moving forward. Note that an injunction, which could be issued as quickly as 21 days after filing, would ensure that the named plaintiffs joining the lawsuit do not need to abide by the new wage levels. It is possible that there might be a nationwide injunction issued which will benefit any company in the U.S. however recent District Court decisions and opinion by The U.S. Supreme Court have made it clear that nationwide injunctions are frowned upon and instead a District Court is likely to be held to only allow an injunction to apply to the named plaintiff companies in the suit. It is for this reason that we are attempting to help all our clients by getting them into the lawsuit as a named plaintiff.

Will there be significant press coverage from this lawsuit?

As reported by the Wall Street Journal, the attorneys leading this lawsuit have already filed challenges in a federal court in New Jersey on behalf of third-party placement companies such as consulting firms. Given that this is the second lawsuit on the same set of rules, we do not expect as much attention as the New Jersey lawsuit. That said, we do believe that there will be some media attention and reporting on the proceedings and the results of the lawsuit.

Are there any similar lawsuits from larger companies?

There are a couple of similar suits occurring at this time. As mentioned above co-counsel recently filed a similar suit in New Jersey attacking the wage rule. There are also talks of a lawsuit in Washington DC and then our lawsuit herein in California. There will likely be others as this rule is the most directly damaging to companies trying to attract and retain the world’s top talent.

How are other companies reacting to these new rules?

Many companies are still assessing the net effect of these onerous and sudden wage increase rules. Unfortunately, unless the rules are withdrawn or an injunction is issued, the Companies are left with little choice but to raise wages for future nonimmigrant visa cases and PERM cases filed. This would be the case even for existing employees. The only exception would be if the Company submits an alternate wage survey such as Radford data. The problem is, wages from Radford data could still be higher than the previous DOL wages in some cases. In practice, we anticipate that there will be pushback from DOL on the submission of Radford and other alternate data. Of course it is yet to be seen how the use of these private wage surveys will play out but the only sure way to get relief from these new wages is to participate in this or a similar lawsuit and obtain an injunction.

Content in this publication is not intended as legal advice, nor should it be relied on as such. For additional information on the issues discussed, consult a Bridge-affiliated partner attorney or another qualified legal professional.


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