On Oct. 8, 2020, the U.S. Citizenship and Immigration Services (USCIS) published an interim final rule (IFR) that revised the definition of the term "specialty occupation" and placed additional restrictions on third-party placement of H-1B workers. The U.S. Department of Labor (DOL) contemporaneously published an IFR amending the regulations governing permanent labor certifications (PERM applications) and labor condition applications (LCAs) in order to substantially increase prevailing wage levels.

By issuing these IFRs, both agencies appear to have bypassed the administrative law requirements regarding public review and comment. This alone makes an immediate legal challenge a certainty. Aside from sidestepping the rulemaking process, these IFRs were put forth by Chad Wolf, whose lawful appointment as acting secretary of the Department of Homeland Security (DHS) was called invalid by the Government Accountability Office two months ago and by a federal judge last month. Just last week,  in Immigrant Legal Resource Center, et al., v. Chad F. Wolf, et al. (N.D. Cal., 3:20-cv-05883), a federal district court enjoined DHS from moving forward with a filing fee hike.

A few days later, the same federal judge issued an order preventing the State Department and DHS from "engaging in any action that results in the non-processing or non-issuance of applications or petitions for visas in the H, J, and L categories," which the Trump administration sought to ban in Proclamation 10052.