La. Forestry Ass'n Inc. v. Sec'y U.S. Dep't of Labor

Decision Date05 February 2014
Docket NumberNo. 12–4030.,12–4030.
Citation745 F.3d 653
CourtU.S. Court of Appeals — Third Circuit
PartiesLOUISIANA FORESTRY ASSOCIATION INC.; Outdoor Amusement Business Association Inc.; Crawfish Processors Alliance; Forest Resources Association Inc.; American Hotel & Lodging Association; American Sugar Cane League of USA Inc., Appellants v. SECRETARY UNITED STATES DEPARTMENT OF LABOR; Jane Oates, in her official capacity as United States Assistant Secretary of Labor Employment and Training Administration; United States Department of Labor; Secretary United States Department of Homeland Security; United States Department of Homeland Security.


Prior Version Recognized as Invalid

20 C.F.R. § 655.10(b)(2)R. Wayne Pierce, Esq. [argued], Pierce Law Firm, Annapolis, MD, Veronica W. Saltz, Esq., Saltz Matkov, Wayne, PA, Leon R. Sequeira, Esq., Seyfarth Shaw, Washington, DC, for Appellants.

Geoffrey Forney, Esq. [argued], United States Department of Justice, Office of Immigration Litigation, Harry L. Sheinfeld, Esq., United States Department of Labor Office of the Solicitor, Washington, DC, for Appellees.

Arthur N. Read, Esq., Friends of Farmworkers, Inc., Philadelphia, PA, Meredith B. Stewart, Esq., Southern Poverty Law Center, New Orleans, LA, Sarah M. Claassen, Esq., Elizabeth D. Mauldin, Esq., Centro de los Derechos del Migrante, Inc., Baltimore, MD, Edward J. Tuddenham, Esq. [argued], New York, NY, for Intervenors.

Before: JORDAN and VANASKIE, Circuit Judges, and RAKOFF,* District Judge.


VANASKIE, Circuit Judge.

Appellants, a group of associations representing employers in non-agricultural industries, claim that the Department of Labor exceeded its authority by enacting a regulation governing the calculation of the minimum wage a U.S. employer must offer in order to recruit foreign workers under the H–2B visa program. The District Court granted summary judgment for the Department of Labor and its co-defendants, the Secretary of Labor, the Department of Homeland Security, and the Secretary of Homeland Security. Having concluded that the regulation was validly promulgated, we affirm the judgment of the District Court.


On January 19, 2011, the Department of Labor (the DOL) issued a new regulation governing the calculation of the minimum wage a U.S. employer must offer in order to recruit foreign workers as part of the H–2B visa program, which permits U.S. employers to recruit foreign workers to fill unskilled, non-agricultural positions that no qualified U.S. worker will accept. SeeWage Methodology for the Temporary Non-agricultural Employment H–2B Program, 76 Fed.Reg. 3,452 (Jan. 19, 2011) (codified at 20 C.F.R. § 655.10) (the 2011 Wage Rule”). In September 2011, Appellants—a group of associations representing employers in non-agricultural industries which recruit H–2B workers and stand to face higher labor costs as a result of the 2011 Wage Rule 1—challenged the validity of the 2011 Rule by initiating an action against the Department of Labor, the Department of Homeland Security, and the Secretaries of the respective agencies. Also party to this appeal is a group of individuals and organizations representing foreign and U.S. workers impacted by the H–2B program (“the Intervenors).2 The Intervenors were plaintiffs in a prior suit that successfully challenged the 2008 Wage Rule, the predecessor to the 2011 Wage Rule.

1. The H–2B Visa Program

The Immigration and Nationality Act of 1952 established the modern framework for regulation of immigration in the United States, including provisions for the admission of permanent and temporary foreign workers. See Immigration and Nationality Act of 1952 (“INA”), Pub.L. No. 82–414, 66 Stat. 163 (codified as amended at 8 U.S.C. §§ 1101 et seq.). One such provision was the H–2 visa program, which governed the recruitment of unskilled foreign workers for agricultural and non-agricultural jobs. Id. § 101(a)(15)(H)(ii). In 1986, Congress enacted the Immigration Reform and Control Act of 1986 (“IRCA”), which amended the INA by, among other things, bifurcating the H–2 visa program into the H–2A and H–2B programs, which govern the admission of agricultural and nonagricultural workers, respectively. SeePub.L. No. 99–603, § 301(a), 100 Stat. 3359, 3411 (amending 8 U.S.C. § 1101(a)(15)(H)(ii)(a)-(b)). Named for the statutory section under which it was created, the H–2B program permits U.S. employers to recruit and hire temporary unskilled, non-agricultural workers from abroad to fill positions that no qualified U.S. worker will accept. See8 U.S.C. § 1101(a)(15)(H)(ii)(b) (stating that U.S. employers may hire an individual “having residence in a foreign country which he has no intention of abandoning who is coming temporarily to the United States to perform other temporary service or labor if unemployed persons capable of performing such service or labor cannot be found in this country....”).

Congress initially charged the Attorney General of the United States with implementing the INA, including the provisions of the Act governing the H–2 visa program. See8 U.S.C. § 1184(a)(1). In 2002, Congress abolished the Immigration and Naturalization Service (“INS”), see6 U.S.C. § 291, and transferred jurisdiction to enforce and administer the nation's immigration laws from the Attorney General to the Secretary of Homeland Security. See6 U.S.C. §§ 202, 557. Thus the authority to determine nonimmigrant visa petitions now rests with the Bureau of Citizenship and Immigration Services, an agency within the Department of Homeland Security (“DHS”). See id. § 271(b).

The authority to administer the H–2B program is vested in the DHS pursuant to section 1184(c) of the INA, which directs that [t]he question of any alien as a nonimmigrant under 8 U.S.C. § 1101(a)(15)(H) shall be determined by the [DHS] after consultation with appropriate agencies of the Government, upon petition of the importing employer.” 8 U.S.C. § 1184(c)(1).3 The DHS has by regulation designated the DOL as the agency from which it seeks “advice” in determining whether to grant H–2B visa petitions. 8 C.F.R. § 214.2(h)(6)(iii) (2013). Specifically, the DHS requires an employer seeking an H–2B visa to first “apply for a temporary labor certification with the Secretary of Labor” prior to filing the visa petition. Id. § 214.2(h)(6)(iii)(A). The regulation further provides that [t]he labor certification shall be advice to the director [of the DHS] on [1] whether or not United States workers capable of performing the temporary services or labor are available and [2] whether or not the alien's employment will adversely affect the wages and working conditions of similarly employed United States workers.” Id. In other words, the DOL's temporary labor certifications advise the DHS whether two of the INA's several statutory requirements for issuance of an H–2B visa have been satisfied. See8 U.S.C. § 1101(a)(15)(H)(ii)(b). The DHS has also by regulation endowed the DOL with the authority to create the procedures necessary to fulfill its charge of issuing labor certifications:

The secretary of labor shall separately establish for the temporary labor program under his or her jurisdiction, by regulation at 20 CFR [§ ] 655, procedures for administering th[e] temporary labor program ... and shall determine the prevailing wage applicable to an application for temporary labor certification for that temporary labor program in accordance with the Secretary of Labor's regulation at 20 CFR [§ ] 655.10.

8 C.F.R. § 214.2(h)(6)(iii)(D). The DHS has explained that it “must seek advice from the [DOL] under the H–2B classification because the statute requires a showing that unemployed U.S. workers are not available to perform the services before a petition can be approved. The [DOL] is the appropriate agency of the Government to make such a labor market finding.” Temporary Alien Workers Seeking Classification Under the Immigration and Nationality Act, 55 Fed.Reg. 2,606, 2,617 (Jan. 26, 1990) (to be codified at 8 C.F.R. § 214.2(h)).

In sum, the process for obtaining an H–2B visa proceeds in two general stages. First, an employer must obtain a temporary labor certification from the DOL. See8 C.F.R. § 214.2(h)(6)(iii)(A). This requires the employer to apply to the DOL for a prevailing wage determination for the area of intended employment. See20 C.F.R. § 655.10. The DOL then calculates the prevailing wage based upon pertinent regulations, e.g., the 2008 or 2011 Wage Rules. Id. The employer must also submit a work order with the state workforce agency serving the geographical area of intended employment and advertise the position at a wage equal to or higher than the prevailing wage as determined by the DOL. Id. Once these conditions have been satisfied, the DOL will issue the labor certification, which serves as the DOL's verification that the employer has demonstrated that “there is an insufficient number of U.S. workers who are qualified and who will be available for the job opportunity for which certification is sought and that the employment of the H–2B workers will not adversely affect the benefits, wages, and working conditions of similarly employed U.S. workers.” Id. § 655.50(b). Only after the DOL issues the labor certification may an employer proceed to the second stage of the process: filing an H–2B visa application with the DHS. See8 C.F.R. § 214.2(h)(6)(iii)(C), (E). Although the 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 the DHS alone. See8 U.S.C. § 1184(c).

2. The DOL's Historical Role in the Administration of the H–2B Program

The DOL has played a role in the administration of the nation's immigration laws in general, and the admission of foreign workers in particular, since the Department's inception in 1913. At the time the DOL was established, the...

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