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Department of Labor Can Set Wage Limits for H-2B Workers, According to Third Circuit

US_Eastern_Pennsylvania_District_Court.jpgThe Third Circuit Court of Appeals recently ruled that the U.S. Department of Labor (DOL) has the authority to establish a minimum wage that a U.S. employer must pay foreign workers under the H-2B temporary work visa program. Louisiana Forestry Assoc., Inc. v. Oates, et al, No. 12-4030, slip op. (3rd Cir., Feb. 5, 2014). The H-2B program allows employers to hire workers from abroad for unskilled, temporary or seasonal, non-agricultural jobs. The issue before the Third Circuit was whether or not DOL, rather than the Department of Homeland Security (DHS), has the authority to set wage requirements.

H-2B visas are available for temporary or seasonal jobs in non-agricultural fields when employers cannot find enough available, qualified, and willing U.S. workers; and the foreign workers will not have a negative impact on U.S. workers’ wages or working conditions. DHS handles H-2B visa petitions through U.S. Citizenship and Immigration Services (USCIS). As part of the petition process, a petitioning employer must obtain a labor certification from DOL verifying the lack of available U.S. workers and the lack of a negative impact.

One part of the labor certification is a prevailing wage determination (PWD), which identifies the average wage paid to employees in a specific occupation, based on factors determined by DOL. The prevailing wage is the minimum amount that the employer must pay the H-2B visa holder. DOL periodically updates its criteria for calculating PWD, with the most recent revisions, known as the 2011 Wage Rule, occurring in 2011. The rule is codified at 20 C.F.R. § 655.10.

Several associations representing employers who routinely hire H-2B workers challenged the 2011 Wage Rule, claiming that it violated the Administrative Procedure Act and the Immigration and Nationality Act, that DHS lacked the authority to delegate PWD decisions to DOL, and that DOL lacked the authority to make such decisions for the H-2B program. They filed suit in a Louisiana federal court in September 2011, but the case was transferred to the Eastern District of Pennsylvania that December.

The lawsuit addressed issues from previous litigation in that district, Comite de Apoyo a los Trabajadores Agricolas (CATA) v. Solis, No. 09-240 (E.D. Penn.), which challenged a wage rule enacted by DOL in 2008. The court invalidated some provisions of the 2008 rule in a 2010 opinion. The 2011 Wage Rule was, to an extent, the result of the CATA litigation. The court accelerated the implementation of the 2011 Wage Rule in a memorandum dated June 16, 2011, and it vacated the remainder of the 2008 rule in a 2013 opinion. The CATA plaintiffs intervened in the Louisiana Forestry lawsuit.

The plaintiffs appealed after the district court granted the defendants’ motion for summary judgment. The Third Circuit affirmed the ruling, finding that DHS’s delegation of PWD authority to DOL was lawful. DHS retains the final say over whether or not to grant an H-2B petition, but it can delegate specific aspects of the petition review process. Because PWD is a component of labor certification, it is a lawful part of the DHS’s delegation of authority.

Immigration attorney Samuel C. Berger represents businesses who are petitioning on behalf of prospective immigrant employees, immigrants and prospective immigrants who seek visas to come to New York or New Jersey areas, and individuals who have already made their homes in this area. To schedule a confidential consultation to see how can help you, please contact us today online or at (212) 380-8117.

More Blog Posts:

Employer Ordered to Reimburse H-2A Visa Holders for Immigration, Travel Expenses, New York & New Jersey Immigration Lawyer Blog, February 19, 2014
Immigration News for New Jersey Employment-Based Immigrant Visa and Temporary Worker Visa Petitioners, New York & New Jersey Immigration Lawyer Blog, February 5, 2014
H-2B Guest Worker Program Poses Problems for Both Workers and Employers, New York & New Jersey Immigration Lawyer Blog, January 8, 2014
Photo credit: By Jeffrey M. Vinocur (Own work) [GFDL, CC-BY-SA-3.0 or CC-BY-2.5], via Wikimedia Commons.