Louisiana Forestry Ass'n v. U.S. Dep't of Labor, PICS Case No. 14-0166 (3d Cir. Feb. 5, 2014) Vanaskie, J. (54 pages).

THIRD CIRCUIT

The Legal Intelligencer

LABOR AND EMPLOYMENT

Class Actions • Opt-out Procedure • Excusable Neglect

Louisiana Forestry Ass'n v. U.S. Dep't of Labor, PICS Case No. 14-0166 (3d Cir. Feb. 5, 2014) Vanaskie, J. (54 pages).

Department of Labor may promulgate rules concerning the temporary labor certification process in the context of the H-2B program, which permits U.S. employers to recruit and hire temporary workers from abroad; rule in question was validly promulgated pursuant to Department of Homeland Security's authority under the Immigration and Nationality Act to administer the nation's immigration laws, generally, and the H-2B program specifically. Affirmed.

Department of Homeland Security, responsible for administering the H-2B program (permitting U.S. employers to recruit and hire temporary unskilled, nonagricultural workers from abroad to fill positions that no qualified U.S. worker will accept), is directed by 28 U.S.C. §1184(c) of the Immigration and Nationality Act to consult with appropriate agencies of the government in determining the question of any alien as a nonimmigrant. DHS requires an employer seeking an H-2B visa to first apply for a temporary labor certification with the Department of Labor for a prevailing wage determination prior to filing the visa petition. DOL calculates the prevailing wage based upon pertinent regulations that it enacts. Only after DOL issues the labor certification may an employer file an H-2B visa application with the DHS. Although DOL's labor certification is a prerequisite to obtaining an H-2B visa petition, the authority to grant or deny an H-2B visa petition ultimately rests with DHS alone.

In 2011, DOL issued a new regulation governing calculation of the minimum wage a U.S. employer must offer in order to recruit foreign workers as part of the H-2B program. A group of associations, representing employers which recruit H-2B workers, challenged the rule's validity (it increased labor costs) by initiating an action against DOL. Appellants argued, inter alia, that DOL lacks authority to promulgate legislative rules concerning the H-2B program.

The U.S. District Court for the Eastern District of Pennsylvania granted appellee's motion for summary judgment, concluding that the INA, as amended, confers implied rulemaking authority on DOL, and DOL had not exceeded the scope of that authority in issuing the 2011 Wage Rule.

On appeal, appellants claimed that there exists no legal basis—statutory or otherwise—upon which DOL may predicate its rulemaking concerning the H-2B program. They contendedthat DHS unlawfully subdelegated its authority over the H-2B program to DOL. Appellees counter that DOL has authority to promulgate rules concerning the H-2B program because DHS lawfully conditioned its granting of H-2B petitions on obtaining a labor certification from DOL and permissibly endowed DOL limited rulemaking authority to carry out its charge of issuing certifications. The U.S. Court of Appeals for the Third Circuit affirmed.

DOL has authority to promulgate rules concerning the temporary labor certification process in the context of the H-2B program, and the 2011 Wage Rule was validly promulgated pursuant to DHS's authority under the INA to administer the nation's immigration laws, generally, and the H-2B program specifically.