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Judge Vacates Flawed Immigrant Wage Rule

(CN) - Finding that the Labor Department's 2008 Wage Rule "directly contradicts" the Immigration and Nationality Act, a federal judge gave farmworker groups a permanent injunction.

In 1952, the Immigration and Nationality Act created the H-2B visa program, which allows employers to bring foreign workers to the U.S. to perform temporary, unskilled, nonagricultural work. The Department of Homeland Security (DHS) and the Department of Labor (DOL) administer the program.

Prior to filing an H-2B petition with the DHS, an employer must apply for a temporary labor certification from Secretary of Labor Hilda Solis, confirming that no "qualified" U.S. workers are available to perform the position sought at its "prevailing wage."

Over the past three decades, the DOL has periodically changed its method for calculating prevailing wages, without notice and comment, and often without explanation. Most recently, it adopted the 2008 Wage Rule, which defines the prevailing wage as "the arithmetic mean ... of the wages of workers similarly employed at the skill level in the area of intended employment."

In 2009, three farmworker organizations - the Comité de Apoyo a los Trabajadores Agrícolas, Pineros y Campesinos Unidos del Noroeste, and the Alliance of Forest Workers and Harvesters - partnered with Salvador Martinez Barrera, a leader of Centro de los Derechos del Migrante's defense committee, to challenge the Wage Rule and other provisions as improperly promulgated under the Administrative Procedure Act (APA).

U.S. District Judge Louis Pollak held the following year that the "DOL has never explained its reasoning for using skill levels as part of H-2B prevailing wage determinations," and that the system has never been subject to APA-required notice-and-comment periods.

Instead of vacating the rule, however, Pollak directed the DOL to promulgate a replacement within 120 days.

In January 2011, the DOL set a revised prevailing wage regulation - the 2011 Wage Rule - to take effect on Jan. 1, 2012. Upon Pollak's orders, the department hastened that date to Sept. 30, 2011.

Appropriations concerns nevertheless led to four postponements. In November 2011, for example, a rider to the Consolidated and Further Continuing Appropriations Act barred the DOL from expending funds to implement the 2011 Wage Rule so that Congress may first "address" it.

The DOL has not stopped using the 2008 Wage Rule even though Pollak invalidated it nearly 30 months ago.

Though the 2011 Wage Rule is set to take effect today, the department announced in October 2012 that it nevertheless anticipates additional delays.

U.S. District Judge Legrome Davis vacated the 2008 rule and barred its continued use Thursday.

"The DOL acknowledges that certifications granted under the 2008 Wage Rule 'artificially lower[ ] wage[s] to a point that [they] no longer represent[ ] market-based wage[s] for the occupation' and that such certifications 'cannot help but have a depressive effect on the wages of [United States workers],'" Davis wrote. "Accordingly, labor certifications issued under the 2008 Wage Rule fall directly outside the narrow range of circumstances under which the DOL is authorized to issue labor certifications and exceed the bounds of the DOL's delegated authority under Section 706(2)(C) of the APA. We therefore invalidate the 2008 Wage Rule under this provision."

Davis sidelined the DOL's claim that the disruptive consequences of vacatur outweigh the seriousness of the procedural and substantive flaws with the 2008 Wage Rule.

"Although vacating the 2008 Rule might disrupt the H-2B program's current structure, Congress has not granted the DHS and DOL unfettered authority to issue H-2B visas," Davis wrote. "Rather, in passing the INA, Congress defined a small subset of individuals who may receive H-2B visas if, and only if, the DHS can ensure that such visas will not adversely affect United States workers. Absent this assurance, the DHS is not authorized to issue H-2B visas."

The court gave the DOL 30 days to comply with the permanent injunction.

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