Wage Hike for Foreign Visas Survives Challenge

(CN) - The 3rd Circuit upheld the Department of Labor's setting of the minimum wage that U.S. employers must offer to recruit foreign workers under the H-2B visa program.

Published on Jan. 19, 2011, the final version of the Labor Department's 2011 wage rule carried a $4.83 wage increase for H-2B employees that would raise labor costs to the tune of an additional $847.4 million annually.

Louisiana Forestry Association Inc. led other employers in the hotel, sugar cane, carnival, commercial crawfish, and logging and reforestation industries in a challenge to the regulation with a lawsuit in Philadelphia.

They claimed that the authority to regulate the H-2B visa program is more properly afforded to the Department of Homeland Security, rather than the Labor Department, as the program involves having foreign workers perform unskilled, nonagricultural jobs in the United States that no U.S. employee will accept.

U.S. District Judge Legrome Davis nevertheless granted the government summary judgment in 2012 after finding it reasonable for the Department of Homeland Security to seek advice from the Department of Labor because the Department of Labor had "been charged for decades with the responsibility of issuing labor certificates to employers seeking to hire temporary workers."

Likening agencies' relationship to a doctor-patient consultation, Davis further said that a "consultation" is fully permitted under the Immigration and Nationality Act.

He also undercut the assertion that the Labor Department lacks authority to make legislative rules. Were that true, the Department of Labor would have had no authority to make previous wage rules that were adopted and gave benefit, according to the ruling.

A three-judge panel of the 3rd Circuit affirmed Wednesday.

"The DHS afforded the DOL only as much rulemaking authority as needed to carry out its consultative role by issuing temporary labor certifications," Judge Thomas Vanaskie wrote for the panel. "Furthermore, as noted above, the DOL has institutional expertise in matters concerning U.S. employment and a long and extensive history of issuing temporary labor certifications for non-agricultural jobs and making limited rules to structure the issuance of such certifications. Thus, there is a 'reasonable connection' between the DOL's limited rulemaking authority and the DHS's determination of H-2B visa petitions."

Congress moreover has been aware for several decades of the Department of Labor's involvement in the H-2B visa program, according to the ruling.

Yet "despite having several opportunities to do so," it never attempted to stop the Department of Labor or specify to the Department of Homeland Security the proper authorities to consult in regards to the H-2B visa program, Vanaskie wrote.

"For example, when it bifurcated the H-2 program to create the H-2A and H-2B programs, Congress specifically named the DOL as the agency with which the DHS must consult in administering the H-2A program," he added.

Vanaskie also rejected the employers' claim that the Department of Labor exceeded its authority under the Administrative Procedures Act and Immigration and Nationality Act when issuing the 2011 Wage Rule, and that the Department failed to take into consideration "employer interests or hardships" when establishing the rule.

"For the foregoing reasons, we affirm the judgment of the District Court," he concluded.

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