The Department of Labor Announces New Notice and Comment Period for H-2B Regulations

Contributed by Koby Polaski, Senior Attorney

The recent litigation and ongoing turmoil over the promulgation of new regulations governing the H-2B program are enough to make anyone’s head spin.

It all started in 2011 when the Department of Labor (DOL) issued a proposed rule that would change the wage methodology it uses to calculate H-2B prevailing wages. The 2011 rule came in in response to a ruling by the U.S. District Court for the Eastern District of Pennsylvania in Comite de Apoyo a los Trabajadores (CATA) v. Solis that ordered the DOL to promulgate new rules concerning the H-2B prevailing wage calculation within 120 days. Under the 2008 regulations, the DOL based prevailing wage determinations on four tier levels that link skill levels to Occupational Employment Statistics (OES) wage surveys. The proposed wage rule requires instead that the mean of the OES wage rates be used to calculate the prevailing wage.

The 2011 regulations have to be implemented, however, because they were enjoined by the U.S. District Court for the Northern District of Florida in Bayou Lawn & Landscape Services v. Hilda L. Solis. Bayou went before the 11th Circuit Court of Appeals, which affirmed the injunction and held – in Bayou Lawn and Landscape Servs v. Sec’y of Labor – that the DOL lacks independent rule-making authority under the Immigration and Nationality Act to issue legislative regulations implementing its role in the H-2B program.

As a result of the 11th Circuit’s ruling, the DOL and DHS together issued an Interim Final Rule revising the prevailing wage methodology in the H-2B program. The fact that both agencies together promulgated the final rule cured the defect identified by the 11th Circuit when it affirmed the injunction.

More recently, on January 17, 2014, the Consolidated Appropriations Act, 2014 was enacted. For the first time since the 2011 regulations, DOL’s appropriations did not prohibit implementation or enforcement of the 2011 wage rule, which means that the DOL can move forward to implement the final rule from 2011. Additionally, on Feb. 5, 2014, the 3rd Circuit held that DOL has authority to promulgate rules concerning the temporary labor certification process in the context of the H-2B program and that the 2011 rule was validly promulgated pursuant to that authority.

Because of so much litigation and confusion, DOL announced in March that recent developments in the H-2B program require consideration of the comments submitted in connection with the 2013 Final Interim Rule and that further notice and comment is appropriate. So DOL will now engage in further notice and comment rule-making in order to move toward implementation of the 2011 wage rule. In the meantime, DOL will continue to employ the H-2B wage methodology using the mean wage rate as the proper baseline for setting prevailing wage rates.