Lawsuit against H1B wage levels changes

H1B Wage Levels Increase Lawsuit by ITServe – DOL Lost, Rule Canceled [Dec 2020]

In H1B Visa by KumarUpdated : 213 Comments

As many of you know, the H1B Prevailing Wage levels were dramatically increased for H1B workers in recent wage protections regulation that was published in federal register.  There was a lawsuit filed today on the new regulation. In this article we will discuss the background on why and details of the lawsuit that we have as of now. Also, we have update the court judgement on the same.

Court Judgment – Injunction Granted to Stop Implementing the Wage Levels Rule

On December 3rd, 2020, there was a judgment given by the court that DOL lost the case and request granted by IT Serve to stop implementing the rule was granted. See below Court order Screenshot. Based on this Court Order, US Dept of Labor issued Official Announcement stating that they are cancelling the implementation of the H1B Wage Levels Change Rule. For complete information, read DOL Update – Cancel the H1B, PERM Wage Levels Change Rule.

Earlier few days ago, a California Court also issued order cancelling the entire Wage Levels Change Rule. It was filed by US Chamber of Commerce. For more info read – Court Cancels H1B Wage Levels, 1 Year H1B Approvals rules.

Court Order Preliminary Injunction Granted – IT Serve vs DOL in New Jersey

If you are not familiar with the H1B and PERM wage level changes, read all the details and impact at article : New H1B, PERM prevailing wage levels, huge impact

Background – Why Lawsuit Filed

H1B employers are supposed to pay as per the prevailing wage levels for H1B workers similar to US workers in an area. The wages paid to H1B workers are  submitted as part of H1B Labor Condition Application (LCA). Recently, as per the new regulation, the H1B prevailing wage rates went up by close to 40% across the board. The prevailing wage level changes went up like in below table. 

Prevailing Wage LevelH1B LCA, PERM Wage levels  Before  New H1B LCA, PERM Wage levels  with Regulation  
Wage Level I17th percentile45th percentile
Wage Level II34th  percentile62nd  percentile
Wage Level III50th  percentile78th  percentile
Wage Level IV67th  percentile95th percentile
H1B Wage Level Changes

This wage level changes has a significant impact for many of the H1B employers, it can impact up to 400K H1B employees based on as per FY2019 stats published on H1BGrader. See below screenshot.  

H1B Wage Levels Change Impact
H1B Wage Levels Change Impact

This wage level changes has significant impact on the IT outsourcing companies. ITServe Alliance Inc, that represents majority of the IT Services, Staffing and Consulting Companies has filed lawsuit in New Jersey Court today Oct 16, 2020 challenging the wage level changes.  Earlier this year, they won against USCIS on the H1B Employer Employee Relationship, Itinerary Case that ended up in settlement with USCIS scraping some of the decade old policies.   Also, there are few other associations planning to file lawsuits on these changes.

Now that you have some background on why, let’s dive into the details.

H1B, PERM Wage Levels Lawsuit Details – Who, Where, What  

Below are the details of the Lawsuit filed in the H1B Wage Levels Change Case

Below are the high level court case details as they appear on Court Cases Website for your reference.

Court Lawsuit ITServe vs US Dept of Labor - Wage Levels Case New Jersey
Court Lawsuit ITServe vs US Dept of Labor – Wage Levels Case New Jersey

Impact of the New Wage Levels on ITServe’s Companies

The lawsuit goes into detail on the impact to ITServe’s members. They say that many of the IT Services contracts with clients or customers are multi-year and the pricing used for that is based on the wage assumptions of current H1B workers. If DOL randomly does wage level changes, without giving proper notice and option to hear from us, it will impact our businesses. We will be forced to do layoffs, move jobs to outside of US and it will have negative impact on the economy.  Below are the list of companies and the impact due to wage level changes.

  • Precision Technologies Corp wage rates for computer related occupations will increase up to 50%
  • Iflowsoft Solutions Inc wage rates for computer related occupations will increase up to 24.5%
  • Smart Work LLC wage rates for computer related occupations will increase up to 49% or more
  • Nam Info Inc. wage rates for computer related occupations will increase up to 50% or more
  • Kolla Soft Inc wage rates for computer related occupations will increase up to 26% or more
  • Dots Technologies Inc Soft Inc wage rates for computer related occupations will increase up to 30 to 40%
  • Zenith Services Inc wage rates for computer related occupations will increase up to 27% or more.
  • They give general reference to the Software Developer Entry Level H1B Wage raised from 79K to 116K in Newark. Check Comparison of H1B Wage Levels in Newark for Software Developers. See below screenshot from H1BGrader website that compares both.
  • You can also browse H1B Prevailing Wages in Newark for all Occupations
H1B Wage levels for Software Developer in Newark
H1B Wage levels for Software Developer in Newark

Check below screenshot from the court case document that talks about the harm to ITServe members.

Harm to ITServe Members with DOL Wage Levels Rule Lawsuit
Harm to ITServe Members with DOL Wage Levels Rule Lawsuit

You may watch the below YouTube Video as well on this topic.

Key Argument Points  raised in the Lawsuit

The plaintiffs(ITServe & Others) broadly put in their arguments under the below three areas (called as counts in legal term).  Below are the details and key points from those three areas.

Count 1 – Violation of Notice and Comment Process for Rulemaking

 US Dept of Labor(DOL) did not give enough notice for plaintiffs and changed the H1B, PERM Wage Levels dramatically.

  • DOL did not follow the proper rule making process without giving chance for public to give feedback, supporting data in comments. It hurts ITServe’s members a lot.
  • DOL does not give proper justification for invoking the fast track process without following the proper regulatory process. DOL did not follow all the required 9 Steps for Federal Rulemaking.
  • All the information presented in the rule justifying the need for urgency are factually wrong. DOL used outdated and incorrect data for computing the new wage levels. They do not consider many relevant reports and studies and put up the new wage rules that are against basic economic theory.

Count 2 – DOL Action against H1B Statute of Degree requirement

DOL based their new wage levels against the H1B requirements set in statute by congress

  • DOL says that the new Level 1 Prevailing Wage levels are upward from Masters degree and used Master’s degree as benchmark for entry level positions for H1B.
  • As per statute, in the definition of H1B specialty occupation, there is only requirement for bachelor’s degree as minimum qualifying for entry into a H1B position.
  • DOL setting the wage levels to 45th percentile for Level 1 Wages is based on wrong assumption and inconsistent with the statute set by congress.

Count 3 – DOL Action is Random and not based on Logic

DOL action is totally random and not based on sound logic or justification. In legal terms, they call DOL action as “arbitrary and capricious”.

  • DOL reasoning to change wage levels saying that H1B workers are paid lower than US workers is not supported by any data or reports
  • DOL did not consider any verified/reputed reports or studies based on real data and falsely assumes that H1B workers are paid less than US workers, employing H1B workers affects wages of US workers.
  • DOL did not consider any studies that show H1B workers employment creates jobs, wage growth, and investment in R&D.
  • DOL did not consider any reports that say lack of H1B workers has harmful effect on economy and can lead to job los, off-shoring of jobs, decline of investments in US.
  • Though DOL says that the reason for skipping regulatory process is unemployment in US due to COVID-19, the unemployment rate in computer and technology professions is relatively low.

You can check the copy of the case document at the end of article.

Decision requested to Court in Lawsuit

ITServe is asking the court for giving preliminary injunction and also permanently stop DOL from implementing the New Wage Levels Rule. The reason they say is many things done by DOL in the interim final rule of H1B Wage Levels in unlawful, not meeting the statute requirements, and it was done randomly without proper reasoning and not considering real reports on H1B Data.

Judgement Seeking in Lawsuit on Wage Levels by ITServe
Judgement Seeking in Lawsuit on Wage Levels by ITServe

Conclusion

The argument points raised in the lawsuit are really strong and DOL may have a hard time justifying the reason for implementing the rule without proper comment. The harm to many business is also something court would weigh in heavily for making the decision. As per Wasden & Banias law firm, “the regulation that was published in federal register without proper rulemaking process has many procedural defects and confident that they would get injunction for the same”.  They are also planning for a lawsuit to challenge the New H1B Rule with Definition change, 1 year approvals, others.

What do you think of the lawsuit ? Do you think Court will give injunction order to halt this rule ? Share your thoughts in comments.

Wage Levels Lawsuit – Court Case Document

   

Other Articles


Comments ( 213 )

  1. RC

    My H1B is expiring in May 2021. Should I start conversation with my company’s attorney for my H1B extension or wait for a month or two for extension ? I have I-140 approved and my H1B extension will be based on I-140 (second time).

    1. administrator
      Kumar

      RC,
      The wage levels rule is not applicable anymore. you can start the discussion now. It is 6 months before expiration, so it is a good time to start the conversation

  2. JJ

    Great News ! We won against DOL pwd rule!

    ITSERVE ALLIANCE, INC. et al v. SCALIA et al

    Thursday, December 03, 2020
    27 2 pgs ORDER that Plaintiffs’7 Amended Motion for a Preliminary Injunction is GRANTED, etc. Signed by Judge Stanley R. Chesler on 12/3/2020. (ams, )
    26 28 pgs OPINION. Signed by Judge Stanley R. Chesler on 12/3/2020. (ams, )

    https://www.courtlistener.com/recap/gov.uscourts.njd.448750/gov.uscourts.njd.448750.27.0.pdf

    https://www.courtlistener.com/docket/18549004/itserve-alliance-inc-v-scalia/

    1. JJ

      For those waiting on DOL to revert flc wage data,

      https://www.dol.gov/agencies/eta/foreign-labor

      December 3, 2020. OFLC Announces Updates to Implementation of the Wage Protections Interim Final Rule; Compliance with District Court Orders

      1. Sk

        Around 8:30AM Eastern Time on December 4, 2020, the FLAG system will be back online; however, employers and their authorized attorneys or agents will temporarily not be able to submit applications for processing where OES survey data is the prevailing wage source.
        Beginning around 8:30AM Eastern Time on December 9, 2020, employers and their authorized attorneys or agents will be able to submit new LCAs, Form ETA-9035/9035E, using the OES survey data that was in effect on October 7, 2020.

        Regarding the above statement, employers won’t be able to file LCA before DEC 9?
        Visa is expiring on 12/14. How to handle this situation?

  3. Raj

    This article says – “We have received reports that since this court decision, the DOL has issued prevailing wage determinations using the July 1 wages. ”

    https://www.fosterglobal.com/blog/federal-court-sets-aside-dol-wage-rule-and-uscis-h-1b-rule-changes/

      1. Rk

        https://www.dol.gov/agencies/eta/foreign-labor?fbclid=IwAR0nRVTE7T9scaIB2UHfhP6eViUwGF1tMMTkK9UCikshUeq1KnXTbvfiOrg

        As per this link, it will updated on Dec 4 th 12 pm est.

  4. PG

    @Kumar,

    Thank you for keeping the community updated and suggestions.
    Finally we have some good news. When can we file the extensions.

    Once again thank you,

    1. PJ

      My employer is saying that its not nation wide yet. This case has been won only in District of California. I don’t think extensions can be filed yet.

      1. CVR

        Your employer is wrong. Ruling is given by federal court judge. Its nation wide. Very strange a employer is unable to understand the judgement and giving wrong conclusions to employees. Educate your employer

  5. DK

    Thanks for the Great News !! Would you please let me know if we can proceed for extensions immediately or Do we have to wait to proceed for extensions for certain period of time ?

    Please let me know

  6. BhU

    Try to join this FB Live and get clarify your questions.
    https://www.facebook.com/siskindsusser/posts/3574731449285857
    Starting @7CST today.

  7. ST

    As per today’s update a) Will LCA wage be changed to earlier values? B) Is the second rule of issuing only one year extension for consulting companies on hold now? In other words, can we apply for 3 years?

        1. BhU

          Super news!!!!!!! Need to celebrate this moment. Thank you very much for patiently responding to all our questions and valuable suggestions. God bless you.

        2. BhU

          On December 1, 2020, in Chamber of Commerce, et al., v. DHS, et al., finding that the DHS and DOL H-1B wage rules were “promulgated in violation of 5 U.S.C section 553(b),” the U.S. District Court for the Northern District of California set aside the DHS interim final rule, Strengthening the H-1B Nonimmigrant Visa Classification Program, and the DOL interim final rule, Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States.

          1. SSStr

            So now the FLC data center is going to change again? We sent a wage determination to DOL 3 months ago (before OCT 8) so now does this mean my wage determination based on this final rule or since it’s been stopped now, it’d be like before OCT 8

    1. PG

      @Kumar,
      Thank you for your kind reply. Could you please tell us what are the private wage survey we can use.
      Do we have any idea when can we expect decision? I am eagerly waiting for the decision.

        1. PG

          Thank you so much Kumar,

          I have completed 6 years on H1-B, and now on I-140 since 2 years. I am waiting for the decision or my employer to raise my pay scale.
          If both didn’t happen, can I go back to India and wait for the decision and apply for the extension without going thru lottery again?

          Much appreciate your reply.

          1. administrator
            Kumar

            PG,
            If you had I-140 approved for more than 180 days, you are free to leave the country and keep coming back to US, until your priority date becomes current.

          1. Jimmy

            Kumar my visa is ending dec 31 too.Is there a way we can stay in US after changing our status and wait for the injunction or the rule thrown away by president and then apply for lca and h1b extension?

          2. administrator
            Kumar

            Jimmy,
            You could use private wage surveys and then filed for extension. Talk to your employer on this.

          3. administrator
            Kumar

            PG,
            As I said, you can ask your employer to try with the private wage surveys. There is no shortcut, you may apply for B2 COS, but that will take a long time and then switching to H1B is going to take time…

  8. pradeep

    From Forbes:

    Update: https://www-forbes-com.cdn.ampproject.org/v/s/www.forbes.com/sites/stuartanderson/2020/11/24/court-hearing-shows-businesses-could-prevail-against-h-1b-visa-rules/amp/?amp_js_v=a6&amp_gsa=1&usqp=mq331AQFKAGwASA%3D

    1. CVR

      What i read from Forbes is arguments raised by plaintiffs attorney Kevin hughes are Strong . DOL and DHS attorneys had hard time in countering with satisfactory arguments. Let hope for the best. Any body heard about the IT Serve alliance hearing today ?

    2. Som

      https://www.courtlistener.com/docket/18549004/itserve-alliance-inc-v-scalia/

      The above line was updated at 7 pm EST. At the bottom of the page, it says, Terminate Motions. Does that mean the court dismissed the case? Looks like a positive sign. Experts who understand legal jargon please weigh in.

      1. Abhi

        This is what I could get from google regarding terminate motion.

        “A motion to terminate asks an immigration court to “terminate” (i.e., dismiss) the charging document (known as the “Notice to Appear” or “NTA”) because the government’s charges are substantively or procedurally defective.”
        Hope it’s positive news.

        1. administrator
          Kumar

          Abhi,
          Context is everything…Here we are missing context. Also, I read the court hearing document, it says “DECISION RESERVED.” Meaning, there will be delay to review and get the decision as the judge wants to review.

      2. administrator
        Kumar

        Som,
        The context is missing around it…what that is applicable to…It is used in Immigration context, for instance, if someone was issue a Notice to Appear and they get motion to terminate, then they do not have to appear…In this case, there is no clear context, so hard to say. The document in that says the decision for argument is reserved. It means the decision will come later and they need time.

      3. Sandeep Gupta

        Kumar, in case H1B visa expires and someon changes to b1 or go to India until the decision is made on this rule. What is the rule says, does that person needs to seek new H1B (meaning April through lottery) or current H1B can be used? Should a person leave to India 3 or 4 weeks before the h1b expires so that he she can use same h1b and does not need to go through lottery fiasco.

        1. administrator
          Kumar

          Sandeep,
          The rule is only wage and it is only tied to the LCA. If you have not used up all 6 years of your H1B, you do not need to go through lottery again.

          1. Sandeep

            HI Kumar, Thanks for clarification. My case is more than 6 years on H1B +I140 approved. If this new rule is not cancelled and I am not able to file extension before I797 expires would I need to go through fresh April visa process? If yes, is there a way to avoid it, like going to India and not use all H1B time period, come back when there is a favorable decision and then apply for extension? Is it a possibility?

          2. administrator
            Kumar

            Sandeep,
            No need. If you have I-140 approved, you can continue to file extensions or transfer later until the priority dates become current.
            There was update on the lawsuit and the wage levels rule was cancelled. check the blog home page for info.

          3. CVR

            Sandeep,
            You do not have to go to India as you have 140 approved. As long as you apply for extension before your i-94 expires you don’t have to travel out side US. Tell your employer to use private wage survey to file H1 extension and you dont have to wait till DOL lawsuit judgement comes as that will kill the time. I see many LCA’s last month got approved based on private wage survey. However employees working at client location they you have a new thing to worry from Dec 08 onwards as their approval will be limited to 1 year.

  9. CVR

    Yesterdays court arguments can be read at
    https://www.courthousenews.com/feds-businesses-clash-over-tech-worker-visa-restrictions/

    Todays is IT Serve alliance hearing in NJ court.

      1. CVR

        When is your I 94 expiring ? If you have 2 to 3 months of time at least then you can wait for judgement. Your employer/attorney need to look for other options like wage surveys. The reason i’m saying is there is no guarantee of when and how the judgement comes.

        1. AS

          My guess is injunction will come . As I see below
          We’re talking about hundreds of thousands of existing employment relationships. If the government is going to be justified in severing those, it’s the sort of thing that the public interest requires at least giving those individuals and their employers some degree of notice so they can make the transition rather than doing it by complete. ambush and overnight,” Hughes said. “That’s not what good cause justifies or allows.”

          1. CVR

            Sandeep,
            Did you hear this from your employer attorney that private wage survey is not accepted ? Not many people are used to file LCA’s using surveys for last 20 years. 95% of LCA’s are filed using OLE data so far. If you get more genuine details about survey wages please add here that will help people for sure.

          2. administrator
            Kumar

            Sandeep,
            This is not true. There were about 7% H1B LCAs that were approved that did not use OES wage surveys. We are working on an article on this.

      1. CVR

        Nirvan
        From both cases Judge will be giving judgement soon. Anything can come out any time. I believe hearings are over. Judge also have to show the reason why they have given so and so descision based on what facts presented in court. Even I’m eagerly waiting for the judgement day.

          1. Shlok

            This Link is not working; could please correct this, as we really want to understand this survey logic.
            https://h1bgrader.com/h1b-prevailing-wage/non-oes-search

  10. Cuto

    https://www.courtlistener.com/recap/gov.uscourts.cand.367484/gov.uscourts.cand.367484.72.0.pdf

    RESULTS: Hearing held.
    Motions are taken under submission.
    A written ruling shall issue.

      1. pradeep

        This is what I find in google:

        When the court rules on a motion or makes an order or renders a judgment in a matter it has taken under submission, the clerk must immediately notify the parties of the ruling, order, or judgment. The notification, which must specifically identify the matter ruled on, may be given by serving electronically or mailing the parties a copy of the ruling, order, or judgment, and it constitutes service of notice only if the clerk is required to give notice under Code of Civil Procedure section 664.5.

    1. RK

      It seems , this is different case not related to wage rule.
      And today nothing happened in regards of this case or may be just short hearing.

      I think, this is big change which won’t happen in air without stable government involvement , please do not hope anything before Feb-2020.

      I was also blindly following this forum , there is no other place or any blog where any attorney has updated anything regarding today hearing.

        1. RSR

          you are right, the case hearing was held today and injunction is pending. I got a confirmation from my lawyer. I see many are anxious, hope this provides some calm.

          1. CVR

            Yes hearing was held today via zoom. Arguments were countered before judge. Now its up to judge to decide. Not sure when he will give his opinion

  11. Dk

    I think we have good News . I have seen in one of the websites as below. Please confirm if this is correct.

    https://www.mayerbrown.com/-/media/files/uploads/general/20-cv-7331-392-brief-of-amici-curiae.pdf

    1. ABV

      This URL you gave is the request submitted to court – not the order – if you see in the website, it was information of 10/30.

      Per the latest update, Looks like hearing is done and waiting for the decision – can see only this information as of now – not sure about the meaning of it or next steps – someone pls throw some light here.

      “Hearing Held
      Motions are taken under submission
      A written ruling shall issue”

  12. CVR

    I dont know the outcome. Not sureif it will take more time. But some hearing happened before judge today. What is read is Minute Entry for proceedings held before Judge Jeffrey S. White: Motion Hearing re: 31 Motion for Preliminary Injunction and 54 Motion for Partial Summary Judgment held on 11/23/2020.
    You can google Chamber of Commerce of the United State of America et al v. United States Department of Homeland Security et

    1. ABV

      Can some one please clarify what is the meaning of it? I see the update in the case as

      “Hearing Held
      Motions are taken under submission
      A written ruling shall issue”

      This was update few mins back but Page is not opening now

        1. WY

          https://www.pacermonitor.com/case/36753577/Chamber_of_Commerce_of_the_United_State_of_America_et_al_v_United_States_Department_of_Homeland_Security_et_al

      1. administrator
        Kumar

        Everyone,
        Usually after the hearing is done, the judge will take time to come up with a decision. They will review the briefs submitted and issue the ruling.
        This is the latest : https://www.courtlistener.com/recap/gov.uscourts.cand.367484/gov.uscourts.cand.367484.72.0.pdf

    2. DK

      I think we have good News . I have seen in one of the websites as below. Please confirm if this is correct.

      https://www.mayerbrown.com/-/media/files/uploads/general/20-cv-7331-392-brief-of-amici-curiae.pdf

      [PROPOSED] ORDER
      The matter comes before the Court on the unopposed administrative motion of
      leading business organizations and companies for leave to file an amicus brief in
      support of Plaintiffs’ Motion for Preliminary Injunction to Stay Agency Action or for
      Partial Summary Judgment (Dkt. 31). Having considered the unopposed
      administrative motion, it is ORDERED that the administrative motion is GRANTED.
      IT IS SO ORDERED.
      DATED: _______
      Hon. Jeffrey S. White
      United States District Judge

      1. administrator
        Kumar

        DK,
        The decision is not out yet.
        What you see is the template that the attorneys provide for courts to use. It is not the Court Order. The final judgment has to be signed by Judge.

      2. pradeep

        Hi Kumar,

        What is the maximum time judge will take to come up with the results? is there any deadline ? I have only two months left for my extension.

        1. administrator
          Kumar

          pradeep,
          it can be anytime in the next few weeks…there is no set timeline though. It all boils down to the harm and time pressure that is indicated in the lawsuit.

          1. pradeep

            Thanks Kumar,

            My wage is now around 89k , With new wage rule my wage should be 100k . If my company increase my wage just above 100k , is that possible to get extension approved?

          2. administrator
            Kumar

            pradeep,
            yes, that is one option for sure. It is only for the LCA approval with DOL. Your extension application depends on other factors too.

          3. CVR

            Pradeep,
            You are all set with your wages . Is you employer willing to raise 11K in one go ? If you work at a client location then please note that Dec 08 rule will be a big impact unless judge blocks it. If you work for a american company as directly employee and your BS degree is in same stream as your SOC code then should not be problem.

    1. RK

      I think todays hearing is in California court, it should be on PST time zone we have wait for a while… If someone can share the link to check the hearing status would be great…

    1. GMSR

      No way. Bad news is I see stellar IT and Purdue lawsuit judge has given time for DOL to submit their arguments by 01/04/21. Hopes are with US commerce lawsuit on Nov 23 is hearing. IT serve hearing on 24. Again delays are very common in court cases. No guarantees on judgements. Not trying to scare but There is no surprise if this goes until January too. Let’s hope for the best next week

        1. GMSR

          RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 11/5/2020. Answer due for ALL FEDERAL DEFENDANTS by 1/4/2021. By this i’m assuming we may not hear anything at least untill January for purdue/stellar IT lawsuit.

    1. CVR

      Masthan,
      If your previously approved petition is using level 1 then you can apply in level 1 safely. If this is first time you are applying H1 from OPT still there should not be a problem in applying level 1. But things become tricky when your previously approved LCA is not level 1. You will might get RFE for explanation. You need to talk to attorney as they have more network and know how to handle the case. My personal opinion is since this is a new situation in first 20 years you might not get a right advice from general audience.

  13. Shlok

    Hi Kumar,

    This is unrelated from new wage rules changes. But I would like to know if you have some inputs here.

    I have valid H1 VISA stamp until Aug/2021, due to some urgency I want to travel to India for 1 week sometime in December. Would you think any existing travel ban impact on me based on my current visa status? or I’m eligible to make this trip.

    Please let me know if you have any suggestions.

    1. SV

      HI, If you have a valid visa stamped then can travel to India and come back to US since friend of mine just came last month for two week India travel.

    2. administrator
      Kumar

      Shlok,
      If you have valid visa, there is nothing stopping you from travel, you are free to go and come back. Carry all the proofs to be safe.

  14. CVR

    Lawsuit filed by chamber of commerce is schedule to hearing on Nov 23. This is the only lawsuit filed against both DOL and DHS, while other 3 law suits are against DOL only. This lawsuit is moving fast. I see that deadline set for filings is also over. I see today Judge also denied new filings after the deadline . Judge also questioned DOL about the reason for not following time line for public comments. Not sure about how the judgement will be. We need to watch Nov 23 if we can get any outcome from this lawsuit or again if there will be delay. If any body has more information please share about these lawsuits. Next week is crucial to watch out.

    1. administrator
      Kumar

      CVR,
      Good summary. Thanks for adding it. Nothing new other than your summary. For others, you can check it at https://www.pacermonitor.com/public/case/36753577/Chamber_of_Commerce_of_the_United_State_of_America_et_al_v_United_States_Department_of_Homeland_Security_et_al

  15. CVR

    What i see is there is no outcome yet. Purdue lawsuit is handled by Judge Emmet G. Sullivan in DC, and law suit filed by IT Serve alliance is handled by judge Stanley R chesler. IT Server alliance hearing date i see is Nov 24 2020 ,again not sure if court will push the date again. Both lawsuits are pushing for preliminary injunction’s . Purdue lawsuit on preliminary injunction outcome could be any time sooner this week or next week unless court pushes them again.

  16. SV

    Hi Any body has news about court decision ?? waiting to get something as need to file a extension but company is unable to increase wages as per new rule ? not sure what need to do.

  17. Manoj Reddy

    https://www.pacermonitor.com/public/case/36755981/PURDUE_UNIVERSITY_et_al_v_SCALIA_et_al

    PURDUE UNIVERSITY et al v. SCALIA et al

    MINUTE ORDER. In view of12 joint status report, it is hereby ORDERED that Defendants’ deadline to file a response to the Complaint is stayed. Signed by Judge Emmet G. Sullivan on 11/12/2020. (lcegs3)
    MINUTE ORDER. In view of8 joint status report filed in Stellar IT v. Scalia, No. 20-3175 (EGS), informing the Court that Plaintiffs agree to consolidate the cases for resolution of the notice-and-comment claim, it is hereby ORDERED that this case is consolidated with Stellar IT v. Scalia, No. 20-3175 (EGS) for resolution of the notice-and-comment claim. Signed by Judge Emmet G. Sullivan on 11/12/2020. (lcegs3).

    1. M23RR

      To me, it seems court is saying there are multiple lawsuits on the same subject. They are asked to collaborate internally. May be there would be one hearing and all accused parties can better collect their points to make case stronger. This will have more chances to get results in favor of H1bs.

      1. Akumar

        Do you know if they have given any other date? I didn’t find any news link related to this lawsuit could you please provide if you have?

  18. Jimmy

    Did we get any hearing date on this? The timelines are very important to be mentioned here as lots of people are waiting for the result of these lawsuits to proceed with their next jobs/extensions/transfers etc.

    1. Ted

      I’m unemployed and I landed a position around the 15th but I am unable to accept it until they overturn this rule. Anyone else has the same problem?

      1. DP

        I am in same situation. I have done my medical and background check. On November 25, they will cancel my offer or I have to choose level 1 to start my H1b transfer.

  19. Anonymous

    one of the major Indian IT company is not processing any amendments or extensions because of the new rule .Extensions /Amendments applied by employees are rejected internally . Forget changing company , we are not even able to change projects internally now .

    1. SR

      My new employer hold me visa transfer documentation process due to new wage level rules. Any idea when this going to revert back so that I can get job

  20. Akash

    It is common sense that they rushed this rule and skipped the 60 day comment period to shove this rule before the elections. Kind of a last attempt punch before a possible knock out. It does not seem to be a well thought rule. I doubt this bill will fly.

    1. SR

      any further update on wage level law ? I am unemployed , new employer given offer but kept me on hold due to this wage level issues and no new offer lineup due to same issue. how soon we expect to get back the things normal.

  21. Lakshmi

    I checked the wage level in my recent LCA and it says Dietrich Spring Survey 2020 and doesn’t say any Wage level. Can you please let me know if this is related to wage level. Also, please let me know if the Dietrich Spring Survey wage levels also changed

    1. administrator
      Kumar

      Lakshmi,
      Some of the wage data is not available in some locations. In such cases, you need to look at the disclaimer text in the bottom .

      1. PS

        Hi Kumar

        Is there any rule that USCIS cannot adjudicate the petition in your favor if wage certification is done with wage surveys? I thought as long as prevailing wage in the LCA is certified by DOL, USCIS has no say in the process how LCA was obtained whether with FLAC wage data or private survey. Besides isnt it only logical that wage is a labor issue and not an immigration one. If you could please start a separate post on this topic for people to share their recent experiences with Private wage surveys and H1-B approval or rejection, that would be great for people who need their H-1B transfers to happen now!

        Thanks

        1. CVR

          Hi PS
          To my research done what you said totally makes logical as long as LCA is approved as per the current regulations USCIS cannot force employers to use only OES data . I think this is first of a kind in last 20 years that petitioners will now focus on private wage surveys as oppose to OES data. Previously if petitioners file LCA in lower levels by decreasing salary during extension the USCIS used to give RFE’s. But this used to happen only when salary was decreased in the companies for what ever reason the level was lowered. You can also wait and see what Kumar will add as part of his input

          1. PS

            Hi CVR

            Thanks your your response. I agree with you there. This issue needs to be discussed at length within the community so that people who are seeking H-1B transfer right now can stay well informed. Perhaps more people commenting or even better, a separate post for people sharing their experiences after October 8 2020.

          2. administrator
            Kumar

            CVR,
            I will create an article, so that more users can discuss and we also try to put in what is in the regulation and analyse data from Past filings

        2. administrator
          Kumar

          PS,
          As per my knowledge, there is no rule as such. DOL is the one who Certifies the wage. Again, we need to verify the regulation and text.
          Definitely a good topic to start and research. Let us do it. Give it some time.

          1. PS

            Hi Kumar

            Sounds great! If my transfer (most likely based on wage survey) goes through in the near future, I would be more than happy to share my experience with new provisions.

          2. administrator
            Kumar

            PS,
            Did some research, there are about 7% of total LCAs that are submitted using private surveys, so you are not alone. It should go through as long as the private survey meets the criteria. will cover these details in the article.

  22. chanakya

    I know this rule will not sustain in the court. However, this rule is a chance for someone like me in the academics for a rise in the salary. Academic institutions are notorious for underpaying the H-1B employees.

      1. chanakya

        Moving the jobs to offshore or terminating them completely is a possibility in the IT sector, but not so much in the academia. It is very hard to find or retain eligible candidates because of the required unique skill set and low wages. Therefore, my opinion is that employers would increase the wages to those in the academic world rather than terminate them completely.

        1. Swetha

          It is possibility everywhere unless you’re very exceptional even in IT. If you’re very exceptional they will invite and pay more to keep you rather than under pay. People exceptional always look for better opportunities and higher pay, Hard to deny these facts.

        2. Swetha

          We all have to accept the uncertainty here in US whether you’re software engineer or a professor. It is sad that legal, tax paying and people in line for PR have to go thru this hassle.

    1. administrator
      Kumar

      Jerry,
      No one knows. It s just submitted, it needs to get a date on hearing, then only we can say….at least few weeks.

      1. Freddy

        In lot of ways , there is broad assumption , that the rule will be blocked for sure in the courts. It should not be blocked for obvious unemployment regions. There are some good point in the rule that the H1bs need to be paid more than the US citizens for the same position. Currently the opposite is happening.

        Lots of folks take it for granted that whatever DOL , DHS does is meaningless and courts will block it. That’s not true , if you see the DOL argument with numbers and reasons why the pay should be hiked , its a valid point.

      2. DP

        Hi Administrator,

        Would be great if you can share the date on which hearing will be done in the court.

        I have to request my new employer to hold my position and they insisted me to give final joining date.

        Thanks

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