On October 30, 2020, Proskauer filed an amicus brief on behalf of 25 leading colleges and universities in support of a preliminary injunction sought by the U.S. Chamber of Commerce in the Northern District of California against Interim Final Rules issued by the U.S. Departments of Homeland Security and Labor. The new Rules substantially restrict eligibility for the H-1B, H-1B1, E-3, EB-2, and EB-3 visa programs relied upon by academic institutions to employ thousands of highly skilled international workers. In doing so, the new Rules will negatively impact workers who, through the universities and academic medical centers that employ them, provide critical contributions to the research that drives our nation’s scientific progress, public health, and economic vitality.

The amicus brief gives voice to academic institutions that were previously unable to make their concerns known because DHS and DOL issued the Interim Final Rules on October 8, 2020 without providing the required notice-and-comment period under the Administrative Procedure Act. The DOL Rule went into effect immediately and the DHS Rule is effective on December 7, 2020.  Had there been an opportunity for these institutions to provide comments regarding the Rules, the agencies would have been required to consider the irreparable harm that the Rules will cause to international workers, who are educating our nation’s students and performing research on COVID-19, cancer, diabetes, heart disease, and other key areas in science and medicine.

The brief argues that the new Rules are arbitrary and capricious for multiple reasons.

First, the new DHS Rule dramatically limits eligibility for H-1B visas by rewriting the definition of “specialty occupation.” For decades, the term “specialty occupation” has referred to an occupation that requires theoretical and practical application of a body of highly specialized knowledge and attainment of at least a bachelor’s degree “in the specific specialty or its equivalent.” This definition permits colleges and universities to create an H-1B position that qualifies as a “specialty occupation” even if the position is open to candidates who have earned degrees from a variety of academic disciplines. Under DHS’s Rule, however, an H-1B candidate will be required to have a degree in a sub-specialty directly related to the position because “specialty occupation” has been redefined as an occupation requiring at least a bachelor’s degree in a “directly related specific specialty.” The DHS Rule will render many current H-1B visa holders ineligible for visa renewals, and will harm the amici’s ability to hire the most qualified and talented individuals in highly multidisciplinary fields such as bioengineering, vaccine development, infectious disease drug development research, and computer science.

Second, the new DOL Rule drastically increases the prevailing wage levels that employers are required to pay to skilled foreign workers employed under the affected visa programs.  The brief argues that, if not enjoined, the Rule will force colleges and universities across the country to substantially narrow the group of potential candidates to fill critical current and future positions, impede pending renewals, and require schools to revisit hiring decisions, or otherwise increase wages to arbitrary, unsustainable rates—all of which impair amici’s ability to carry out funded research critical for national security, health, and economic competitiveness. The Rule also will irreparably harm amici’s ongoing research—including critical COVID-19 research—disrupt their ability to educate their students, and materially impact some amici’s ability to provide health care to communities.

If not enjoined, the Rules will cause significant disruption to institutions and their employees working under H-1B and other affected visas. Educational institutions are now facing tremendous uncertainty in planning their course offerings, including classes taught by instructors employed on H-1B visas. Critical scientific and COVID-19 research currently underway may be disrupted or terminated, and healthcare initiatives will suffer if international doctors, nurses, and other medical professionals on H-1B visas may not be able to serve their communities. Current employees on H-1B visas may be forced to return overseas, relocating their families, which often include U.S. citizen children.

For all of these reasons and more, the new Rules are yet another misguided and fundamentally unfair effort to restrict lawful immigration that will substantially harm not only immigrant workers but also the U.S. citizens and institutions that benefit from the important educational and scientific contributions these immigrants make to our nation.

Proskauer filed this brief on behalf of amici curiae New York University, Boston University, Brandeis University, Brown University, the Catholic University of America, Columbia University, Connecticut State Colleges and Universities, Dartmouth College, Emory University, The George Washington University, Grinnell College, Harvard University, Massachusetts Institute of Technology, The Mount Sinai Health System and Icahn School of Medicine at Mount Sinai, Northeastern University, the Pennsylvania State University, Princeton University, Rutgers, the State University of New Jersey, Syracuse University, Tufts University, the University of Chicago, University of Connecticut, University of Pennsylvania, Wellesley College, and Yale University.

The Proskauer team was led by Joseph O’Keefe, Lary Rappaport, and Paul Salvatore, and included Andrew Sherwood, Abigail Rosenblum, Scott Tan, Valarie McPherson, and Jonathan Gartner.  Bobbi Preyer and Robert Linton also provided invaluable assistance.