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11th Circuit Regulates on Dep't of Labor H-2B Regulations

By William Peacock, Esq. on April 04, 2013 | Last updated on March 21, 2019

They may be the Department of Labor, but they have no authority over H-2B labor. Temporary foreign workers are governed by the H-2A (agricultural) and H-2B (non-agricultural) programs. While both programs were originally administered by the Attorney General, the authority was later transferred to the Department of Homeland Security. In 1986, Congress split the agricultural workers into the separate H2-A program and granted the DOL rulemaking authority over those workers alone.

Simple enough, right? DHS governs H-2B, DOL governs H-2A.

Except, it apparently wasn't that simple for the DOL, which issued rules for the H-2B program in 2011. The 11th Circuit today called that rule-making program ultra vires, which in the arena of administrative law, is fightin' words.

After the DOL issued their proposed rules in the Federal Register, the plaintiffs, which include the Chamber of Commerce of the United States and a number of small businesses that employ temporary workers, filed for an injunction, arguing that the DOL had no authority to issue the rules. The district court agreed, and found that the threat of irreparable harm outweighed any damage to the DOL.

The DOL argues that two statutory provisions grant it the authority to issue these rules. The first, 8 U.S.C. § 1184(c)(1), instructs the DHS to consult with other agencies, including the DOL, before granting visas. Because the DHS is instructed to consult with the DOL, the DOL argues that this is enough to allow them to issue their own rules without the DHS.

We can't top the 11th Circuit's response, so here it is:

We reject this interpretation of "consultation." Under this theory of consultation, any federal employee with whom the Secretary of DHS deigns to consult would then have the "authority to issue legislative rules to structure [his] consultation with DHS." This is an absurd reading of the statute and we decline to adopt it.

DOL was designated a consultant. It cannot bootstrap that supporting role into a co-equal one.

The DOL also cited 8 U.S.C. § § 1101(a)(15)(H)(ii)(b). This defines an H2-B worker as a temporary worker filling an unwanted gig. It doesn't address rulemaking authority, not does it provide any support whatsoever to the DOL's claims of power.

The previous provision, however, addresses agricultural workers. It does grant rulemaking power to the DOL for those workers.

Now, why do you suppose Congress gave the DOL power in one statute, and neglected to mention it in the very next statute? We'd toss some Latin phrases out there to make us sound smart, but the court instead cited a case that held that Congress isn't completely incompetent and we presume that they do things like this on purpose.

The court also affirmed the lower court's findings regarding irreparable harm, lack of danger of delay to the DOL, and the public interest considerations.

Injunction granted. Rules halted. Constitutional crisis averted.

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