Outdoor Amusement Bus. Ass'n, Inc. v. Dep't of Homeland Sec.

• Decision Date: 18 December 2020
• Docket Number: No. 18-2370,18-2370
• Citation: 983 F.3d 671
• Parties: OUTDOOR AMUSEMENT BUSINESS ASSOCIATION, INC. ; Maryland State Showmen's Association, Inc.; The Small and Seasonal Business Legal Center; Lasting Impressions Landscape Contractors, Inc.; Three Seasons Landscape Contracting Services, Inc; New Castle Lawn & Landscape, Inc., Plaintiffs – Appellants, v. DEPARTMENT OF HOMELAND SECURITY; United States Citizenship and Immigration Services; Department of Labor; Employment & Training Administration; Wage & Hour Division, Defendants – Appellees, Margharita Kuri; Timothy King; Henry Wojdylo; Ronald Nyenhuis; Shirley Harmon; Antonio Rivera Martinez; Andrew Mitschell; Comité de Apoyo a Los Trabajadores Agricolas (CATA); Pineros y Campesinos Unidos del Noroeste ; Northwest Forest Workers Center, Amici Supporting Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

983 F.3d 671

OUTDOOR AMUSEMENT BUSINESS ASSOCIATION, INC. ; Maryland State Showmen's Association, Inc.; The Small and Seasonal Business Legal Center; Lasting Impressions Landscape Contractors, Inc.; Three Seasons Landscape Contracting Services, Inc; New Castle Lawn & Landscape, Inc., Plaintiffs – Appellants,

v. DEPARTMENT OF HOMELAND SECURITY; United States Citizenship and Immigration Services; Department of Labor; Employment & Training Administration; Wage & Hour Division, Defendants – Appellees,Margharita Kuri; Timothy King; Henry Wojdylo; Ronald Nyenhuis; Shirley Harmon; Antonio Rivera Martinez; Andrew Mitschell; Comité de Apoyo a Los Trabajadores Agricolas (CATA); Pineros y Campesinos Unidos del Noroeste ; Northwest Forest Workers Center, Amici Supporting Appellees.

No. 18-2370

United States Court of Appeals, Fourth Circuit.

Argued: September 10, 2020

Decided: December 18, 2020

ARGUED: Robert Wayne Pierce, PIERCE LAW FIRM, Annapolis, Maryland; Leon R. Sequeira, Arlington, Virginia, for Appellants. Kathryne M. Gray, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees. Clermont Fraser Ripley, NORTH CAROLINA JUSTICE CENTER, Raleigh, North Carolina, for Amici Curiae. ON BRIEF: Joseph H. Hunt, Assistant Attorney General, William C. Peachey, Director, Erez Reuveni, Assistant Director, Glenn M. Girdharry, Assistant Director, Joshua S. Press, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees. Edward Tuddenham, Paris, France; Art Read, JUSTICE AT WORK, Philadelphia, Pennsylvania; Vanessa Coe, LEGAL AID SOCIETY OF PALM BEACH COUNTY, INC., West Palm Beach, Florida; D. Michael Dale, NORTHWEST WORKERS’ JUSTICE PROJECT, Portland, Oregon, for Amici Comité de Apoyo de Los Trabajadores Agricolas (CATA), et al.

Before KEENAN, WYNN, and RICHARDSON, Circuit Judges.

Affirmed in part and vacated in part by published opinion. Judge Richardson wrote the opinion, in which Judge Keenan and Judge Wynn joined.

RICHARDSON, Circuit Judge:

H-2B visas provide vital employees for employers who need temporary nonagricultural workers but cannot find help domestically. Each year, H-2B visas allow 66,000 temporary workers to enter the country to meet those demands. A core part of the H-2B visa program is labor certifications—the process of determining whether American workers are available and whether employment of H-2B workers would adversely affect similarly employed American workers.

For at least 50 years, the agency in charge of H-2B visas relied on the Department of Labor to provide labor certifications. In 2008, the Department of Homeland Security (the agency now charged with administering the H-2B program) passed rules requiring that employers receive a favorable labor certification from Labor (as Homeland Security's chosen "consulting agency") before obtaining a visa. To implement and structure this labor-certification process, Labor promulgated several program and wage regulations. This set off an avalanche of litigation that led to Homeland Security and Labor jointly issuing a new series of rules in 2015.

Plaintiffs, a group of employers and associations whose members rely on H-2B visas, challenge Homeland Security's 2008 Rules and the joint 2015 Rules as exceeding the agencies’ statutory authority. We agree with the district court that the challenge to the 2008 Rules is time-barred. We conclude that Plaintiffs lack standing to challenge the 2015 Enforcement Rules and therefore vacate the district court's decision on the merits as to those rules. But we agree with the district court that the remaining Rules—the 2015 Program and Wage Rules—were properly promulgated.

I. Background

Plaintiffs are a group of employers and associations whose members rely on H-2B visas to find workers for their temporary nonagricultural jobs ("Employers"). Employers sued to challenge a series of regulations promulgated by Homeland Security and Labor governing the H-2B program. Employers claim that these rules exceeded the Government's statutory authority. See 5 U.S.C. §§ 558 and 706(2)(C). Employers argue that several of its named members have been harmed by these "unworkable" Rules, as the Rules have increased compliance costs, caused delays, and led to bankruptcies, layoffs, and breaches of contract. Supplemental Br. of Employers 1. And Outdoor Amusement, an organization representing some of the Employers, alleges that it has lost members and diverted resources to educate and ensure their remaining members comply. Id . at 10.

The first set of challenged rules are Homeland Security's 2008 Rules. Those Rules require an employer to receive a favorable labor certification from Labor before submitting an H-2B petition to Homeland Security. 8 C.F.R. § 214.2(h)(6) ; 73 Fed. Reg. 78,104, 78,129.¹ Before these Rules, employers still had to seek a labor certification, but they could request a review by Homeland Security if they were denied. 31 Fed. Reg. 4446 (Mar. 16, 1966) ; 8 C.F.R. § 214.2(h)(6)(iv)(D), (E) (2008) ; see also G.H. Daniels III & Assocs., Inc. v. Perez , 626 F. App'x 205, 207 (10th Cir. 2015). Under the 2008 Rules, however, Homeland Security would not consider granting an H-2B petition if Labor denied the employer a labor certification. 8 C.F.R. § 214.2(h)(6)(iii)(C). If Labor refused to issue a certification, an employer's only recourse after the 2008 Rules was to appeal within Labor to obtain a certification. 8 C.F.R. § 214.2(h)(6) ; 73 Fed. Reg. 78,063, 78,104, 78,129. Employers argue that the 2008 Rules abrogate Homeland Security's statutory duty to be the agency determining every petition by making petitions contingent on a favorable labor certification from Labor.

The Employers also challenge two sets of rules from 2015: the 2015 Program Rules establishing the standards governing the labor-certification-application process, 80 Fed. Reg. 24,042, and the 2015 Wage Rules setting the standards for determining prevailing wages to be paid to H-2B workers, 80 Fed. Reg. 24,146. Employers contend that these 2015 Program and Wage Rules exceed Homeland Security and Labor's statutory authority because Homeland Security cannot pass rules about labor certifications controlling Labor and Labor lacks authority to issue any rules governing its own conduct in granting the labor certifications.

The district court rejected these challenges and granted summary judgment upholding the regulations.

A. Statutory framework and history

Congress passed the Immigration and Nationality Act ("INA") in 1952 to collect and reorganize existing immigration law. 66 Stat. 163, 168 (1952), now 8 U.S.C. § 1101 et seq . As part of this law, Congress gave the Attorney General authority to administer and enforce laws and regulations about the admission of aliens. 8 U.S.C. § 1103(a)(1). Congress later transferred this authority to the Secretary of Homeland Security. Homeland Security Act of 2002, Pub. L. No. 107-296, § 402, 116 Stat. 2135, 2178 (2002). The Secretary is given broad authority over immigration: "The Secretary of Homeland Security [is] charged with the administration and enforcement of this chapter and all other laws relating to the immigration and naturalization of aliens." 8 U.S.C. § 1103(a)(1). And Congress has directed the Secretary to "establish such regulations ... and perform such other acts as he deems necessary for carrying out his authority under the provisions of this chapter." § 1103(a)(3).

One of the Homeland Security Secretary's duties is administering the nonimmigrant H-2 Visa Program for temporary unskilled workers. 8 U.S.C. § 1184(c)(1). In administering this program, "any specific case or specific cases shall be determined by the [Secretary], after consultation with appropriate agencies of the Government, upon petition of the importing employer." Id . (emphasis added). The employer's petition must be approved for an H-2 visa to be granted. And that "petition shall be in such form and contain such information as the [Secretary] shall prescribe ." Id. (emphasis added).

Congress has bifurcated the H-2 visa program for temporary foreign workers. See 8 U.S.C. § 1101(a)(15)(H)(ii) (a) – (b). The first piece, H-2A, provides visas for temporary agricultural workers. The second, H-2B, permits employers to hire temporary nonagricultural workers. This case concerns this second visa program, H-2B.

H-2B visas are statutorily available for those aliens (1) "having a residence in a foreign country which [they] ha[ve] no intention of abandoning" and (2) "who [are] coming temporarily to the United States to perform other [nonagricultural] temporary service or labor," but only (3) "if unemployed persons capable of performing such service or labor cannot be found in this country." 8 U.S.C. § 1101(a)(15)(H)(ii)(b). And whether these three criteria are satisfied must be "determined" by the Secretary of Homeland Security "after consultation with appropriate agencies." 8 U.S.C. § 1184(c)(1).

B. Regulatory framework and history

Historically, the Attorney General had chosen to consult with Labor to determine "if unemployed persons capable of performing such service or labor cannot be found in this country." 8 U.S.C. § 1101(a)(15)(H)(ii)(b) ; 31 Fed. Reg. 4446, 6611 (1966) ; 18 Fed. Reg. 4925 (1953) ; 38 Fed. Reg. 35,427 (1973).² And, as the consulting agency, Labor issued various letters determining the standards for labor certifications. See LFA , 889 F. Supp. 2d at 715–17 (collecting various letters).

In 2008, Homeland Security promulgated rules, after notice and comment, that formalized the process by requiring a certification from Labor that the employer's temporary jobs could not be filled with American workers and that H-2B workers would not adversely affect similarly employed American workers. 8 C.F.R. § 214.2(h)(6)(iii)(A). Without that certification, the new rules barred Homeland Security from considering a petition for H-2B visas. § 214.2(h)(6)(iii)(C).³ The standards Labor was to use in issuing...