> The Administrative Procedure Act (APA) authorizes an agency to issue a rule without
prior notice and opportunity to comment when the agency for good cause finds that those
procedures are “impracticable, unnecessary, or contrary to the public interest.” Under the APA, notice
and comment is deemed “impracticable” when an agency “cannot both follow section 553 and execute its
statutory duties,” while the “public interest” prong “connotes a
situation in which the interest of the public would be defeated by any requirement of advance
notice.” Generally, the good cause exception for forgoing notice and comment rulemaking
“excuses notice and comment in emergency situations, or where delay could result in serious
harm.” While emergency situations are the most common circumstances in which good cause
is invoked, the infliction of real harm that would result from delayed action even absent an
emergency can be sufficient grounds to issue a rule without undergoing prior notice and
comment.

> Here, two different circumstances are present that satisfy the APA’s good cause criteria.
First, the shock to the labor market caused by the widespread unemployment resulting from the
coronavirus public health emergency has created exigent circumstances that threaten immediate
harm to the wages and job prospects of U.S. workers. The INA’s wage protections are meant to ensure
that the employment of foreign workers does not have an adverse impact on similarly employed U.S. workers.
But the flaws in the existing wage levels—which were promulgated through guidance and without meaningful
economic justification, are inconsistent with the statute, and serve as the source of adverse labor
effects on U.S. workers even under normal economic conditions—can only exacerbate, and severely so, the
dangers posed to U.S. workers by recent mass lay-offs unless immediate action is taken. Keeping in place the
current levels is untenable, and any delay in issuing this rule is contrary to the public interest. Notice and
comment procedures in these circumstances would make it impracticable for the Department to
fulfill its statutory mandate and carry out the “due and required execution of [its] agency
functions” to protect U.S. workers.

> Separately, even absent the emergency labor market conditions caused by the coronavirus
pandemic, providing the public an opportunity to comment before the adjustments to the wage
levels take effect is contrary to the public interest insofar as it would impede the Department’s
ability to solve the problems this interim final rule is meant to address. Advance notice of the
intended changes would create an opportunity, and the incentives to use it, for employers to
attempt to evade the adjusted wage requirements. This constitutes a situation where the public’s
interest is “defeated by any requirement of advance notice” and also justifies the Department’s
decision to forgo notice and comment before issuing the rule.

sigh - and here I am, paying payroll taxes without being eligible for any benefits, hoping that I'll live to be 130 years and get my permanent residency. Then I can retire and live the american dream.

Source: https://www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/DOL-Int...