Labor Bureau Can Hike Foreign Workers’ Wages

PHILADELPHIA (CN) - Wages may increase for unskilled laborers after a federal judge rejected a challenge to a new Labor Department regulation governing foreign work visas.

Employers use the H-2B visa program to recruit unskilled laborers from abroad to fill positions no qualified U.S. worker will accept. The jobs are temporary, and the foreign workers do not immigrate here.

The Department Labor has been operating under a 2008 wage rule for such visas even though a federal deemed the rule invalid two years ago.

When the department revised issued a new wage rule in 2011, it projected that average hourly pay would increase by $4.83 per hour for H-2B workers and U.S. workers recruited in conjunction with H-2B visa applications. Employers participating in the visa program were estimated to pay $847.4 million in wages to H-2B workers as a result of the rule.

Several of these employers, representing the hotel, sugar cane, carnival, commercial crawfish and logging and reforestation industries, filed suit, claiming that the department lacks authority to make any legislative rules regarding the H-2B visa program.

They claim the revision violates the Administrative Procedure Act and the Regulatory Flexibility Act. Under the Immigration and Nationality Act, administration of the visa program falls under the Department of Homeland Security, according to the complaint. Employers claim that the Department of Labor is limited to merely advising Homeland Security on the program.

But U.S. District Judge Legrome Davis concluded Monday that it was reasonable for Homeland Security to condition the grant of H-2B visas on the receipt of Labor Department labor certifications.

"It was eminently reasonable for the DHS to do so because the DOL is uniquely qualified to provide advice about the potential effects of H-2B workers' employment on United States workers, and because the DOL had been charged for decades with the responsibility of issuing labor certifications to employers seeking to hire temporary foreign workers," Davis wrote.

The judge likened the partnership to a doctor-patient relationship.

"Consider a sick patient who sees his doctor for a 'consultation,'" the 43-page decision states. "The patient tells the doctor beforehand, 'I'll do whatever you recommend. You're the expert, after all.' The fact that the patient invariably takes the doctor's advice does not make the doctor-patient meeting any less of a 'consultation.' It simply reflects the reality, correctly recognized by the patient, that the doctor knows best when it comes to medical issues. The same reasoning applies here: DHS takes the DOL's advice on the labor certification question because DHS understands that the DOL has unrivaled expertise in this particular field. But it is still just a 'consultation,' which the [Immigration and Nationality Act] expressly permits."

Though the employers claimed the Labor Department lacks authority to make legislative rules, the court said, "We strongly disagree."

"The DOL acted appropriately in promulgating its prevailing wage regulations, essentially for the reasons just set forth," the decision states.

"The logical (and ironic) implications of the employers associations' argument are worth noting," Davis added. "If the DOL lacked statutory authority to promulgate the 2011 wage rule, it also lacked authority to promulgate the 2008 wage rule and, indeed, all prior legislative rules the agency has adopted with respect to the H-2B visa program. The employer associations thus call into question the foundations of a scheme from which they have long benefitted."

The court also rejected claims regarding the Administrative Procedure Act and the Regulatory Flexibility Act.

"The fact that more accurate prevailing wage calculations result in employers being required to pay higher wages does not mean that the DOL failed to consider employers' interest in an adequate labor supply," Davis wrote.

"For the reasons stated above, the federal defendants' motion for summary judgment will be granted, and the employer associations' motion for summary judgment will be denied," he concluded.

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