Both of the administration’s new and harmful H-1B regulations published in early October, one impacting and increasing the required wage levels set by government survey sand one impacting degree requirements have been struck down by the Ninth Circuit Court of Appeals.

There rules, published October 8, 2020, were both published as “interim final rules” meaning that they went into effect before the notice and comment period mandated by the Administrative Procedures Act had been held. The wage rule went into effect immediately upon publication, and the degree rule was set to go into effect December 6.

To avoid the notice and comment period and impose these rules on an “emergency” basis, the administration had to argue that there was in fact some purpose for these rules that met the definition of an emergency. They tried to argue that the perceived need to protect jobs for US workers during the economic recovery from the economic slump caused by the COVID-19 pandemic shutdowns was such an emergency – an argument they had made before and lost with regard to the administration’s blanket bars to nonimmigrants in certain categories entering the US.

Unsurprisingly, this argument didn’t work the second time around either. The court again rejected the emergency justification.