Temporary Non-Agricultural Employment of H-2B Aliens in the United States

104 Pages·2015·0.85 MB·English

Vol. 80 Wednesday,
No. 82 April 29, 2015
Part IV
Department of Homeland Security
8 CFR Part 214
Department of Labor
Employment and Training Administration
20 CFR Part 655
Wage and Hour Division
29 CFR Part 503
Temporary Non-Agricultural Employment of H–2B Aliens in the United
States; Interim Final Rule
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24042 Federal Register/Vol. 80, No. 82/Wednesday, April 29, 2015/Rules and Regulations
DEPARTMENT OF HOMELAND • Mail or Hand Delivery/Courier: Development and Research at (202)
SECURITY Please submit all written comments 693–3700 (VOICE) (this is not a toll-free
(including disk and CD–ROM number) or 1–877–889–5627 (TTY/
8 CFR Part 214 submissions) to Adele Gagliardi, TDD).
Administrator, Office of Policy
[CIS No. 2563–15] FORFURTHERINFORMATIONCONTACT: For
Development and Research,
further information on 8 CFR part 214,
RIN 1615–AC06 Employment and Training contact Steven W. Viger, Adjudications
Administration, U.S. Department of
Officer (Policy), Office of Policy and
DEPARTMENT OF LABOR Labor, 200 Constitution Avenue NW.,
Strategy, U.S. Citizenship and
Room N–5641, Washington, DC 20210.
Immigration Services, Department of
Employment and Training Please submit your comments by only
Homeland Security, 20 Massachusetts
Administration one method. Comments received by
NW., Washington, DC 20529–2060;
means other than those listed above or
Telephone [phone] (this is not a
20 CFR Part 655 received after the comment period has
toll-free number).
closed will not be reviewed. The
For further information on 20 CFR
Wage and Hour Division Departments will post all comments
part 655, subpart A, contact William W.
received on http://www.regulations.gov
Thompson, II, Acting Administrator,
29 CFR Part 503 without making any change to the
Office of Foreign Labor Certification,
comments, including any personal
RIN 1205–AB76 information provided. The http:// ETA, U.S. Department of Labor, 200
Constitution Avenue NW.,
www.regulations.gov Web site is the
Temporary Non-Agricultural Room C–4312, Washington, DC 20210;
Federal e-rulemaking portal and all
Employment of H–2B Aliens in the Telephone [phone] (this is not a
comments posted there are available
United States toll-free number). Individuals with
and accessible to the public. The
hearing or speech impairments may
AGENCY: U.S. Citizenship and Departments caution commenters not to
access the telephone number above via
Immigration Services, Department of include personal information such as
TTY by calling the toll-free Federal
Homeland Security; Employment and Social Security Numbers, personal
Information Relay Service at 1–800–
Training Administration, and Wage and addresses, telephone numbers, and
877–8339.
Hour Division, Labor. email addresses in their comments as
For further information on 29 CFR
such information will become viewable
ACTION: Interim final rule; request for part 503, contact Mary Ziegler, Director,
by the public on the http://
comments. Division of Regulations, Legislation, and
www.regulations.gov Web site. It is the
Interpretation, Wage and Hour Division,
SUMMARY: The Department of Homeland commenter’s responsibility to safeguard
U.S. Department of Labor, 200
Security (DHS) and the Department of his or her information. Comments
Constitution Avenue NW.,
Labor (DOL) are jointly issuing submitted through http://
Room S–3510, Washington, DC 20210;
regulations governing the certification of www.regulations.gov will not include
Telephone [phone] (this is not a
the employment of nonimmigrant the commenter’s email address unless
toll-free number). Individuals with
workers in temporary or seasonal non- the commenter chooses to include that
hearing or speech impairments may
agricultural employment and the information as part of his or her
access the telephone number above via
enforcement of the obligations comment.
Postal delivery in Washington, DC, TTY by calling the toll-free Federal
applicable to employers of such
may be delayed due to security Information Relay Service at 1–800–
nonimmigrant workers. This interim
concerns. Therefore, the Departments 877–8339.
final rule establishes the process by
encourage the public to submit SUPPLEMENTARYINFORMATION:
which employers obtain a temporary
comments through the http://
labor certification from DOL for use in I. Executive Summary
www.regulations.gov Web site.
petitioning DHS to employ a
Docket: For access to the docket to The Immigration and Nationality Act
nonimmigrant worker in H–2B status.
read background documents or (INA) establishes the H–2B
We are also issuing regulations to
comments received, go to the Federal nonimmigrant classification for a non-
provide for increased worker
eRulemaking portal at http:// agricultural temporary worker ‘‘having a
protections for both United States (U.S.)
www.regulations.gov. The Departments residence in a foreign country which he
and foreign workers. DHS and DOL are
will also make all the comments has no intention of abandoning who is
issuing simultaneously with this rule a
received available for public inspection coming temporarily to the United States
companion rule governing the
during normal business hours at the to perform . . . temporary [non-
methodology to set the prevailing wage
Employment and Training agricultural] service or labor if
in the H–2B program.
Administration (ETA) Office of Policy unemployed persons capable of
DATES: This interim final rule is Development and Research at the above performing such service or labor cannot
effective April 29, 2015. Interested address. If you need assistance to review be found in this country.’’ 8 U.S.C.
persons are invited to submit written the comments, DOL will provide you 1101(a)(15)(H)(ii)(b), INA section
comments on this interim final rule on with appropriate aids such as readers or 101(a)(15)(H)(ii)(b). In accordance with
or before June 29, 2015. print magnifiers. DOL will make copies the INA and as discussed in detail in
S2 ADDRESSES: You may submit comments, of the rule available, upon request, in this preamble, the Department of
ULE identified by Regulatory Information large print and as an electronic file on Homeland Security (DHS) consults with
D with R Nofu tmheb efor l(lRowINi)n 1g 2m05et–hAoBd7s:6 , by any one cporomvpiduitnerg dthisek i.n DteOriLm w fiilnl aclo rnuslied ienr other trhesep Deecpt atort tmhee nHt –o2f BL apbroorg r(aDmO,L a)n wdi DthO L
RO • Federal e-Rulemaking Portal formats upon request. To schedule an provides advice on whether U.S.
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N1 www.regulations.gov. Follow the Web appointment to review the comments workers capable of performing the
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PT site instructions for submitting and/or obtain the rule in an alternate temporary services or labor are
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K4 comments. format, contact the ETA Office of Policy available. See 8 U.S.C. 1184(c)(1), INA
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Federal Register/Vol. 80, No. 82/Wednesday, April 29, 2015/Rules and Regulations 24043
section 214(c)(1) (providing for DHS to electronic job registry and the both H–2B workers and workers in
consult with ‘‘appropriate agencies of possibility of additional required corresponding employment. The interim
the government’’). Under DHS contact with community-based final rule requires employers to pay visa
regulations, an H–2B petition for organizations). The interim final rule and related fees of H–2B workers, and
temporary employment must be also requires the job offer to remain it requires employers to pay the
accompanied by an approved temporary open to U.S. workers until 21 days inbound transportation and subsistence
labor certification from DOL, which before the employer’s start date of need, costs of workers who complete 50
serves as DOL’s advice to DHS regarding which provides a longer application percent of the job order period and the
whether a qualified U.S. worker is period that ends closer to the date of outbound transportation and
available to fill the petitioning H–2B need than was previously required. The subsistence expenses of employees who
employer’s job opportunity and whether interim final rule also reverts back to the complete the entire job order period.
a foreign worker’s employment in the compliance-based certification model Finally, it prohibits employers from
job opportunity will adversely affect the that had been used prior to the 2008 retaliating against employees for
wages or working conditions of final rule, rather than continuing to use exercising rights under the H–2B
similarly employed U.S. workers. See 8 the attestation model. Finally, the program.
CFR 214.2(h)(6)(iii)(A) and (D). interim final rule also adopts an The interim final rule also contains a
This interim final rule, which is employer registration process that number of provisions that will lead to
virtually identical to the 2012 final rule requires employers to demonstrate their increased transparency. It requires
that DOL developed following public temporary need for labor or services employers to disclose their use of
notice and comment, improves DOL’s before they apply for a temporary labor foreign labor recruiters in the
ability to determine whether it is certification, which expedites the solicitation of workers; to provide
appropriate to grant a temporary certification process; additionally, the workers with earnings statements, with
employment certification. For reasons resulting registration may remain valid hours worked and offered and
described in further detail below, DOL for up to three years, thereby shortening deductions clearly specified; to provide
never implemented the 2012 final rule; the employer’s certification process in workers with copies of the job order;
as a result, this rulemaking contains a future years. and to display a poster describing
number of improvements to the The interim final rule also provides a employee rights and protections. The
temporary employment certification number of additional worker Departments believe that these
process that was in place on March 4, protections, such as increasing the procedures and additional worker
2015. This interim final rule expands number of hours per week required for protections will lead to an improved
the ability of U.S. workers to become full-time employment and requiring that temporary employment certification
aware of the job opportunities in U.S. workers in corresponding process.
question and to apply for opportunities employment receive the same wages Summing the present value of the
in which they are interested. For and benefits as the H–2B workers. It also costs associated with this rulemaking in
example, this interim final rule includes requires that employers must guarantee Years 1–10 results in total discounted
new recruitment and other requirements employment for a total number of work costs over 10 years of $9.24 million to
to broaden the dissemination of job offer hours equal to at least three-fourths of $10.58 million (with 7 percent and 3
information (such as by introducing the the workdays in specific periods for percent discounting, respectively).
TABLE 1—SUMMARY OF ESTIMATED COST AND TRANSFERS BY PROVISION
[Millions of dollars]
Undiscounted Transfers and costs by year
(in millions of dollars)
Year 1 Year 2–10 Year 1–10
Cost component
costs costs costs
Transfers
Corresponding Workers’ Wages—Low ....................................................................................... $18.21............ $18.21............ $182.1
Corresponding Workers’ Wages—High....................................................................................... $54.62............ $54.62............ $546.2
Transportation .............................................................................................................................. $55.19............ $55.19............ $551.9
Subsistence ................................................................................................................................. $3.13.............. $3.13.............. $31.3
Lodging ........................................................................................................................................ $1.87.............. $1.87.............. $18.66
Visa and Border Crossing Fees .................................................................................................. $10.65............ $10.65............ $106.48
Total Transfers—Low .................................................................................................................. $87.24............ $87.24............ $890.43
Total Transfers—High.................................................................................................................. $125.45.......... $125.45.......... $1,254.52
Costs to Employers
Additional Recruiting .................................................................................................................... $0.76.............. $0.76.............. $7.57
Disclosure of Job Order............................................................................................................... $0.23.............. $0.23.............. $2.34
S2 Read and Understand Rule ......................................................................................................... $0.98.............. $0................... $0.98
E Document Retention .................................................................................................................... $0.27.............. $0................... $0.27
RUL Other Provisionsa ........................................................................................................................ $0.014............ $0.014............ $0.14
with
OD Total Costs to Employers ..................................................................................................... $2.25.............. $1.01.............. $11.30
R
P
VN1 Costs to Government
T
P
V
K4 Electronic Job Registry ................................................................................................................ $0.14.............. $0.05.............. $0.56
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24044 Federal Register/Vol. 80, No. 82/Wednesday, April 29, 2015/Rules and Regulations
TABLE 1—SUMMARY OF ESTIMATED COST AND TRANSFERS BY PROVISION—Continued
[Millions of dollars]
Undiscounted Transfers and costs by year
(in millions of dollars)
Year 1 Year 2–10 Year 1–10
Cost component
costs costs costs
Enhanced U.S. Worker Referral Period ...................................................................................... Not Estimated Not Estimated Not Estimated
Total Costs to Government .................................................................................................. $0.14.............. $0.05.............. $0.56
Total Costs & Transfers
Total Costs and Transfers—Low ................................................................................................. $91.43............ $90.09............ $902.28
Total Costs and Transfers—High ................................................................................................ $127.84.......... $126.50.......... $1,266.37
Total Transfers—Low .................................................................................................................. $89.04............ $89.04............ $890.43
Total Transfers—High.................................................................................................................. $125.45.......... $125.45.......... $1,254.52
Total Costs................................................................................................................................... $2.39.............. $1.05.............. $11.85
Note: Totals may not sum due to rounding.
aIncludes the sum of: Elimination of Attestation-Based Model; Post Job Opportunity; Workers Rights Poster.
TABLE 2—SUMMARY OF COSTS AND 2B nonimmigrant.1DHS must approve that there are sufficiently available H–
TRANSFERS—SUM OF PRESENT this petition before the beneficiary can 2B visas in light of the applicable
VALUES be considered eligible for an H–2B visa numerical limitation for H–2B visas, 8
or H–2B status. Finally, the INA CFR 214.2(h)(8)(ii)(A); and (4) that the
Transfers requires that ‘‘[t]he question of application is submitted consistent with
and costs importing any alien as [an H–2B] strict requirements ensuring the
(millions of nonimmigrant . . . in any specific case integrity of the H–2B system, 8 CFR
Cost component dollars)
or specific cases shall be determined by 214.2(h)(6)(i)(B), (6)(i)(F).2
Year 1–10 [DHS], after consultation with DHS has implemented the statutory
costs appropriate agencies of the Government, protections attendant to the H–2B
upon petition of the importing program, by regulation. See 8 CFR
Present Value—7% Real Interest Rate employer.’’ 8 U.S.C. 1184(c)(1), INA 214.2(h)(6)(iii), (iv), and (v). In
section 214(c)(1). accordance with the statutory mandate
Total Costs & Transfers—Low $678.42 Pursuant to the above-referenced at 8 U.S.C. 1184(c)(1), INA section
Total Costs & Transfers—High 952.04
authorities, DHS has promulgated 214(c)(1), that DHS consult with
Total Transfers—Low ............... 669.18
Total Transfers—High .............. 942.80 regulations implementing the H–2B ‘‘appropriate agencies of the
Total Costs ............................... 9.24 program. See, e.g., 73 FR 78104 (Dec. 19, government’’ to determine eligibility for
2008). These regulations prescribe the H–2B nonimmigrant status, DHS (and
Present Value—3% Real Interest Rate conditions under which DHS may grant the former Immigration and
an employer’s petition to classify an Naturalization Service (‘‘legacy INS’’))
Total Costs & Transfers—Low $792.92 alien as an H–2B worker. See 8 CFR have long recognized that the most
Total Costs & Transfers—High 1,112.81 214.2(h)(6). U.S. Citizenship and effective administration of the H–2B
Total Transfers—Low ............... 782.34
Total Transfers—High .............. 1,102.23 Immigration Services (USCIS) is the program requires consultation with DOL
Total Costs ............................... 10.58 component agency within DHS that to advise whether U.S. workers capable
of performing the temporary services or
adjudicates H–2B petitions. Id.
Note: Totals may not sum due to rounding. labor are available. See, e.g., Temporary
USCIS examines H–2B petitions for
Alien Workers Seeking Classification
II. Background compliance with a range of statutory
Under the Immigration and Nationality
and regulatory requirements. For
A. The Statutory and Regulatory Act, 55 FR 2606, 2617 (Jan. 26, 1990)
instance, USCIS will examine each
Framework (‘‘The Service must seek advice from the
petition to ensure, inter alia, (1) that the
Department of Labor under the H–2B
The INA establishes the H–2B job opportunity in the employer’s
classification because the statute
nonimmigrant classification for a non- petition is of a temporary nature, 8 CFR
requires a showing that unemployed
agricultural temporary worker ‘‘having a 214.2(h)(1)(ii)(D), (6)(ii) and (6)(vi)(D);
U.S. workers are not available to
residence in a foreign country which he (2) that the beneficiary alien meets the
perform the services before a petition
has no intention of abandoning who is educational, training, experience, or
can be approved. The Department of
coming temporarily to the United States other requirements, if any, attendant to
Labor is the appropriate agency of the
to perform . . . temporary [non- the job opportunity described in the
Government to make such a labor
agricultural] service or labor if petition, 8 CFR 214.2(h)(6)(vi)(C); (3)
unemployed persons capable of
2DHS also publishes annually a list of countries
RULES2 pb1e1e r0ffo1ou(ramn)(di1n 5ign) ( sHtuh)ci(shi ic )s(oebur)v,n iItcNryeA .o’ ’rs 8 el caUtbi.ooSrn. Cc .a nnot S11e1c6Uu Srntiatdyte. rA2 s1ce3tc 5ot,if o a2nn0 y01 25re 1(f7He rSoefAn t)ci,te lP etu oXb tVlhic eo LfA atthwtoe r 1Hn0eo7ym– 2e9la6n, d 2w21Bh4 ov.2sise(ah n )p(a6rtoi)o(ginr)(aaEml)s; iasnree et h eaelli sgcoiob, mlee.ig nt.o,g 7py9ae raFtriR.c Si3pe2ae1t e48 i(CnJaF tnRh. e1 H7,–
with 101(a)(15)(H)(ii)(b). Section 214(c)(1) of General in a provision of the INA describing 2014 notice of eligible country list). As part of its
D functions that were transferred from the Attorney adjudication of H–2B petitions, USCIS must
RO the INA, 8 U.S.C. 1184(c)(1), requires an General or other Department of Justice official to determine whether the alien beneficiary is a
N1P importing employer (H–2B employer) to DHS by the HSA ‘‘shall be deemed to refer to the national of a country on the list; if not, USCIS must
VPTV petition DHS for classification of the S(2e0c0re3t)a (rcyo’d’ oiffy Hinogm HeSlaAn,d t iSt.e XcuVr,i tsye.c S. e1e5 167 U);. 6S .UC.. S5.5C7. dfoert ethrmati nalei ewnh teot hbeer a i tb iesn ienfi tchiaer Uy .oSf. snuacthio pneatli tiinotner. est
SK4 prospective temporary worker as an H– 542 note; 8 U.S.C. 1551 note. See 8 CFR 214.2(h)(6)(i)(E).
D
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Federal Register/Vol. 80, No. 82/Wednesday, April 29, 2015/Rules and Regulations 24045
market finding. The Service supports has established regulatory procedures to DOL is consistent, transparent, and
the process which the Department of certify whether a qualified U.S. worker provided in the form that is most useful
Labor uses for testing the labor market is available to fill the job opportunity to DHS.
and assuring that wages and working described in the employer’s petition for In addition, effective January 18,
conditions of U.S. workers will not be a temporary nonagricultural worker, and 2009, pursuant to 8 U.S.C.
adversely affected by employment of whether a foreign worker’s employment 1184(c)(14)(B), INA section
alien workers.’’). in the job opportunity will adversely 214(c)(14)(B), DHS transferred to DOL
Accordingly, DHS regulations require affect the wages or working conditions its enforcement authority for the H–2B
that an H–2B petition for temporary of similarly employed U.S. workers. See program. See, e.g., 8 CFR 214.2(h)(6)(ix)
employment in the United States must 20 CFR part 655, subpart A. This (stating that DOL may investigate
be accompanied by an approved interim final rule establishes the process employers to enforce compliance with
temporary labor certification from DOL. by which employers obtain a temporary the conditions of, among other things,
8 CFR 214.2(h)(6)(iii)(A) and (iv)(A).3 labor certification and the protections an H–2B petition and a DOL-approved
The temporary labor certification serves that apply to H–2B workers and temporary labor certification). Under
as DOL’s advice to DHS with respect to corresponding workers. As part of this authority, and after consultation
whether a qualified U.S. worker is DOL’s temporary labor certification with DHS, DOL established regulations
available to fill the petitioning H–2B process, which is a condition precedent governing enforcement of employer
employer’s job opportunity and whether for employers seeking to apply for H–2B obligations and the terms and
a foreign worker’s employment in the workers under DHS regulations, 8 CFR conditions of H–2B employment.
job opportunity will adversely affect the 214.2(h)(6)(iii)(D) and (iv), DOL sets the Accordingly, this interim final rule sets
wages or working conditions of minimum wage that employers must forth enforcement provisions.
similarly employed U.S. workers. See 8 offer and pay foreign workers admitted As discussed in greater detail below,
CFR 214.2(h)(6)(iii)(A) and (D). In to the United States in H–2B DOL’s authority to issue its own
addition, as part of DOL’s certification, nonimmigrant status. See 20 CFR legislative rules to carry out its duties
DHS regulations require DOL to 655.10. The companion final wage rule under the INA has been challenged in
‘‘determine the prevailing wage issued simultaneously with this interim litigation. On April 1, 2013, the U.S.
applicable to an application for final rule establishes DOL’s Court of Appeals for the Eleventh
temporary labor certification in methodology for setting the wage, Circuit upheld a district court decision
accordance with the Secretary of Labor’s consistent with the INA and existing that granted a preliminary injunction
regulation at 20 CFR 655.10.’’ 8 CFR DHS regulations. against enforcement of the 2012 H–2B
214.2(h)(6)(iii)(D). As discussed above, DHS has rule, 77 FR 10038, on the ground that
DHS relies on DOL’s advice in this determined that the most effective the employers were likely to prevail on
area, as DOL is the appropriate implementation of the statutory labor their allegation that DOL lacks H–2B
government agency with expertise in protections in the H–2B program rulemaking authority. Bayou Lawn &
labor questions and historic and specific requires that DHS consult with DOL for Landscape Servs. v. Sec’y of Labor, 713
expertise in addressing labor protection its advice about matters with which F.3d 1080 (11th Cir. 2013). As a result
questions related to the H–2B program. DOL has unique expertise, particularly of the preliminary injunction in Bayou,
This advice helps DHS fulfill its questions about testing the U.S. labor DOL continued to operate the H–2B
statutory duty to determine, prior to market and the methodology for setting program under the predecessor 2008
approving an H–2B petition, that the prevailing wage in the H–2B rule. On remand, the district court
unemployed U.S. workers capable of program. The most effective method for issued an order vacating the 2012 H–2B
performing the relevant service or labor DOL to provide this consultation is by rule, and permanently enjoined DOL
cannot be found in the United States. 8 the agencies setting forth in regulations from enforcing the rule on the ground
U.S.C. 1101(a)(15)(H)(ii)(b), INA section the standards that DOL will use to that DOL lacks rulemaking authority in
101(a)(15)(H)(ii)(b); 8 U.S.C. 1184(c)(1), provide that advice. These rules set the the H–2B program. Bayou Lawn &
INA section 214(c)(1). DHS has therefore standards by which employers Landscape Servs. v. Sec’y of Labor, No.
made DOL’s approval of a temporary demonstrate to DOL that they have 3:12–cv–183 (N.D. Fla. Dec. 18, 2014)
labor certification a condition precedent tested the labor market and found no or (Bayou II). The Bayou II decision is
currently on appeal to the Eleventh
to the acceptance of the H–2B petition. insufficient numbers of qualified,
Circuit. On the other hand, on February
8 CFR 214.2(h)(6)(iii) and (vi). available U.S. workers, and set the
5, 2014, the U.S. Court of Appeals for
Following receipt of an approved DOL standards by which employers
the Third Circuit held that ‘‘DOL has
temporary labor certification and other demonstrate to DOL that the offered
authority to promulgate rules
required evidence, USCIS may employment does not adversely affect
concerning the temporary labor
adjudicate an employer’s complete H– U.S. workers. By setting forth this
certification process in the context of
2B petition. Id. structure in regulations, DHS and DOL
Consistent with the above-referenced ensure the provision of this advice by the H–2B program, and that the 2011
Wage Rule was validly promulgated
authorities, since at least 1968,4DOL
pursuant to that authority.’’ La. Forestry
of temporary foreign labor for industries other than
Ass’n v. Perez, 745 F.3d 653, 669 (3d
3The regulation establishes a different procedure agriculture and logging). Until 1986, there was a
for the Territory of Guam, under which a single H–2 temporary worker classification Cir. 2014) (emphasis added).
petitioning employer must apply for a temporary applicable to both temporary agricultural and non- To ensure that there can be no
D with RULES2 lCa2asBFb 4a RopD r ce2H oct1inSet4ird .oht2iinatf(iihs ocf )orna(ert6 iqp)to(uerniemii rciw)epe(ddAoit erha)an. rttteyh tm eoe mpGaodoprjvlauoerdyrynim cloaaerbtn ioootfr n i Gnc oe utfrha taimefn i. c H8at– i on aI(IINHNmgrA–Ami2c it1uAgo0lr) t1ca uar(tnraieao)ad(lnt 1 enw 5R oto)ewn(rfH-kooa)er g(smriresii)p. ca ,I aun6nrl6da t1u t SCe9r t8oapa6lntr .,(ot Hr1Cgo6r–ola32 nAm Bg(cJrs)ute w fnsooseofr rr12aek9g7ve8r,ir i6ss1ce.,9u dSP5l teu2tuheb)r; e. a l qvDtouaHgleieSsdtt hiaitoenynrd ,o aaDfb rtOeoh uLeis t rs( tetuhhgieeun lgaDa utethitpohiasnor sritin mittnyee rnftohitmrsi s)a , f anirndea al,
RO United States since 2008. 73 FR 78103. DOL, L. 99–603, sec. 301, 100 Stat. 3359. Under the 1968 rule. By proceeding together, the
N1P however, has promulgated regulations governing its final rule, DOL considered, ‘‘such matter[s] as the Departments affirm that this rule is fully
VPTV atedmjupdoircaartyio lna boof re cmeprtliofiyceart iaopnp sliicnactei o1n9s6 f8o. rS ee 33 FR eamppprloopyreira’tse antetsesm opf ttsh teo wreacgreusi ta nwdo rwkoerrsk ianngd the consistent with the INA and
SK4 7570 (May 22, 1968) (DOL final rule on certification conditions offered.’’ 33 FR at 7571. implementing DHS regulations and is
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24046 Federal Register/Vol. 80, No. 82/Wednesday, April 29, 2015/Rules and Regulations
vital to DHS’s ability to faithfully contractor.5See CATA I, 2010 WL ceased operating the H–2B program
implement the statutory labor 3431761 at *26–27. because it no longer has any existing
protections attendant to the program. regulation establishing the processes
C. The Perez Vacatur, Good Cause To
See 8 U.S.C. 1101(a)(15)(H)(ii)(b), INA necessary to issue temporary labor
Proceed Without Notice and Comment
section 101(a)(15)(H)(ii)(b); 8 U.S.C. certifications. Shortly after the court
Rulemaking, and Request for Comments
1184(c)(1), INA section 214(c)(1); 8 CFR issued its decision, DOL posted a notice
214.2(h)(6)(iv). This interim final rule 1. The Perez Vacatur and Its Impact on on its Web site informing the public that
implements a key component of DHS’s Program Operations ‘‘effective immediately, DOL can no
determination that it must consult with On March 4, 2015, the U.S. District longer accept or process requests for
DOL on the labor market questions Court for the Northern District of prevailing wage determinations or
relevant to its adjudication of H–2B Florida, which previously had vacated applications for labor certification in the
petitions. This interim final rule also DOL’s 2012 H–2B rule and enjoined its H–2B program.’’6As a result of the
executes DHS’s and DOL’s enforcement in Bayou II, vacated the Perez vacatur order, DOL was unable to
determination that implementation of 2008 rule and permanently enjoined process any H–2B temporary
the consultative relationship may be DOL from enforcing it. Perez v. Perez, employment certification applications
established through regulations that No. 14–cv–682 (N.D. Fla. Mar. 4, 2015). or issue any H–2B certifications as
determine the method by which DOL As in its decision in Bayou II vacating advice to DHS, which effectively shut
will provide the necessary advice to the 2012 H–2B rule, the court in Perez down the H–2B program for all
DHS. Finally, this interim final rule sets found that DOL lacked authority under employers filing new H–2B temporary
forth enforcement procedures and the INA to independently issue employment certification applications
remedies pursuant to DHS’s delegation legislative rules governing the H–2B with DOL. In addition, the Perez vacatur
of enforcement authority to DOL. See 8 program. Perez, slip op. at 6. Based on order eliminated the crucial regulatory
U.S.C. 1184(c)(14)(B), INA section the vacatur order and the permanent provision that the ‘‘employer must
214(c)(14)(B); 8 CFR 214.2(h)(6)(ix). injunction in Perez, DOL immediately request a prevailing wage determination
from the NPC in accordance with the
B. The 2008 Rule and the CATA
5Also in response to CATA I, which held that procedures established by this
Litigation
part of the methodology to set the prevailing wage regulation’’ set out at 20 CFR 655.10(a),
In 2008, DOL issued regulations was invalid because it was not adequately thus leaving DOL unable to process any
explained, 2010 WL 3431761 at *19, DOL issued
governing DOL’s role in the H–2B prevailing wage requests or issue any
separately a rule governing the methodology to set
temporary worker program. Labor the H–2B prevailing wage. See Wage Methodology prevailing wage determinations.7
Certification Process and Enforcement for the Temporary Non-agricultural Employment H– At the time of the Perez vacatur order
for Temporary Employment in 2B Program, on January 19, 2011, 76 FR 3452 (the on March 4, 2015, DOL had pending
2011 Wage Rule). Shortly before the 2011 Wage
Occupations Other Than Agriculture or Rule came into effect, Congress issued an over 400 requests to set the prevailing
Registered Nursing in the United States appropriations rider effectively barring wage for an H–2B occupation, and
(H–2B Workers), and Other Technical implementation of the 2011 Wage Rule, and the almost 800 applications for H–2B
Changes, 73 FR 78020 (Dec. 19, 2008) same rider was issued in every appropriations temporary labor certification
enactment until January 2014. During the period
(the 2008 rule). The 2008 rule DOL was unable to implement the 2011 Wage Rule, representing approximately 16,408
established, among other things, the DOL extended the effective date of the 2011 Wage workers. In order to minimize
framework for DOL to receive, review Rule so that it would not come into effect while the disruption to the H–2B program and to
agency was without the appropriations necessary to
and issue H–2B labor certifications. The prevent economic dislocation to
implement it. DOL was never able to implement the
2008 rule also established a 2011 Wage Rule and continued to rely on the 2008 employers and employees in the
methodology for determining the wage Rule. Therefore, the court in 2013 vacated the industries that rely on H–2B foreign
that a prospective H–2B employer must problematic provision (20 CFR 655.10(b)(2)) and workers and to the general economy of
ordered the DOL to come into compliance in 30
pay, the recruitment standards for
days. Comite de Apoyo a los Trabajadores Agricolas
testing the domestic labor market, and v. Solis, 933 F. Supp. 2d 700 (E.D. Pa. 2013) (CATA 6Employment and Training Administration,
the mechanism for processing prevailing II). Announcements, http://www.foreignlabor
wage requests. Id. In addition, the 2008 In response to the vacatur and 30-day compliance cert.doleta.gov (Mar. 4, 2015).
order in CATA II, and the Eleventh Circuit’s 7The court order in Perez did not vacate the 2013
rule governed the enforcement process
decision in Bayou Lawn & Landscape Servs., IFR, and the court’s judgment on DOL’s
to make certain U.S. and H–2B workers discussed supra, DOL and DHS promulgated an independent regulatory authority did not have a
are employed in compliance with H–2B interim final rule, Wage Methodology for the direct impact on the 2013 IFR, which was issued
labor certification requirements. Temporary Non-Agricultural Employment H–2B jointly by DOL and DHS. However, the 2013 IFR
Program, part 2, 78 FR 24047 (Apr. 24, 2013) (2013 did only one thing: it made a single change to
On August 30, 2010, the U.S. District
IFR), which again revised the wage methodology. §655.10(b)(2) to eliminate the use of skill levels in
Court for the Eastern District of The Departments issued the 2013 IFR jointly to setting wages based on the OES. The 2013 IFR left
Pennsylvania in Comite´ de Apoyo a los dispel questions that arose as a result of Bayou untouched all the other provisions in the 2008 wage
Trabajadores Agricolas (CATA) v. Solis, about the respective roles of the two agencies and methodology, and those provisions remained in full
the validity of DOL’s regulations as an appropriate force and effect in the 2008 rule following the
No. 2:09–cv–240, 2010 WL 3431761
way to implement the interagency consultation publication of the 2013 IFR. As a result, the Perez
(E.D. Pa. Aug. 30, 2010) (CATA I), specified in section 214(c)(1) of the INA, 8 U.S.C. order vacated virtually all of §655.10, except for
invalidated various provisions of the 1184(c)(1). Finally, the U.S. Court of Appeals for the §655.10(b)(2), which was promulgated in the 2013
2008 rule and remanded it to DOL. In Third Circuit vacated on substantive and IFR. Thus, the vacatur eliminated DOL’s wage
procedural APA grounds 20 CFR 655.10(f), which methodology (except for §655.10(b)(2)) as well as
response to CATA I, DOL’s 2012 H–2B
permitted employers to submit employer-conducted the procedures for requesting and obtaining
ES2 rBualyeo, uw, hriecvhis weda st huel tpimarattiecluyl aern pjorionveidsi oinn s sAugrrviceoylsa. sC vo.m Pietere dze, 7A7p4o Fy.o3 da 1lo7s3 T, 1ra9b1a (j3add oCriers. 2014) p§r6e5v5a.i1l0in(fg) wina CgeAsT. TAo IgIeI,t htheirs w ruitlhin tgh ele vfta cDaOtuLr wofi thout
RUL that were invalidated by the Court, (CATA III). For a complete history of the regulations a complete methodology or any procedures to set
with including specifying when H–2B governing the methodology to set the prevailing prevailing wages in the H–2B program until the
D wage in the H–2B program, see the companion rule court’s stay. As explained infra, the Perez court has
RO employers must contact unions as a published in this issue of the Federal Register, stayed its vacatur order until May 15, 2015, and at
N1P potential source of labor, and providing Wage Methodology for the Temporary Non- the expiration of the stay, DOL will once again be
VPTV a new definition of full-time and a Awghriicchu lftiunraalilz Eems tphleo y2m01e3n tI FHR– 2foBl lPorwoignrga mpu (b2l0i1c5 i)n, put wtoi stheto uant da cisosmuep ltehtee pmreevthaoildinoglo wgya goer iann yth per Hoc–e2dBu res
SK4 modified definition of job on the proper H–2B wage methodology. program.
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Federal Register/Vol. 80, No. 82/Wednesday, April 29, 2015/Rules and Regulations 24047
the areas in which those industries are addition, as part of DOL’s certification, prospect of experiencing another
located, on March 16, 2015, DOL filed DHS regulations require DOL to program hiatus if and when the
an unopposed motion requesting a ‘‘determine the prevailing wage temporary stay expires on or before May
temporary stay of the Perez vacatur applicable to an application for 15, 2015. DOL’s 2008 rule is the only
order. On March 18, 2015, the court temporary labor certification in comprehensive mechanism in place for
entered an order temporarily staying the accordance with the Secretary of Labor’s DOL to provide advice to DHS because
vacatur of the H–2B rule until and regulation at 20 CFR 655.10.’’ 8 CFR the 2008 rule sets the framework,
including April 15, 2015. On April 15, 214.2(h)(6)(iii)(D). procedures, and applicable standards
2015, at the request of proposed DOL has fulfilled its consultative role for receiving, reviewing, and issuing H–
intervenors, the court entered a second in the H–2B program through the use of 2B prevailing wages and temporary
order extending the temporary stay up legislative rules to structure its advice to labor certifications. The 2008 rule sets
to and including May 15, 2015. The legacy INS and now DHS for several the recruitment standards for testing the
court in Perez has requested briefing on decades. See 33 FR 7570–71 (DOL) (May domestic labor market and provides the
several issues, including whether the 22, 1968); 73 FR 78,020 (DOL) (Dec. 19, rules for processing prevailing wage
plaintiff had standing to challenge the 2008). Before DOL issued the 2008 rule, requests. DHS is precluded by its own
2008 rule. The court’s extension of the it supplemented its regulations with regulations from accepting any H–2B
stay on April 15 occurred late in the guidance documents that set substantive petition without a temporary labor
day, after DOL had already initiated standards for wages and recruitment certification from DOL. See 8 CFR
processes necessary to provide for an and structured the manner in which the 214.2(h)(6)(iii)(C). Moreover, without
orderly cessation of the H–2B program agency processed applications for H–2B advice from DOL, DHS lacks the
and after DOL had already posted a labor certification. See 73 FR at 78021– capability to test the domestic labor
notice to the regulated community on its 22. One district court has held that market or determine whether there are
Web site that the H–2B program would DOL’s pre-2008 H–2B guidance available U.S. workers to fill the
be closed again the next day. On April document was a legislative rule that employer’s job opportunity. As a result,
16, 2015, following the court’s stay determined the rights and obligations of if and when the stay concludes as
extension, DOL immediately posted a employers and employees, and DOL’s currently scheduled on or before May
new notice on its Web site that it would failure to issue the guidance through the 15, 2015, the vacatur of DOL’s 2008 rule
continue to operate the H–2B program notice and comment process was a will require DOL to once again cease
and resume normal operations. procedural violation of the APA. As a operating the H–2B program, and DOL
result, the court invalidated the will again be unable to process
DHS is charged with adjudicating
guidance. See CATA I, 2010 WL employers’ requests for temporary
petitions for a nonimmigrant worker
3431761, at *19, 25. Similarly, the U.S. employment certification applications
(commonly referred to as Form I–129
Court of Appeals for the D.C. Circuit has until the agencies can put in place a
petitions or, in this rule, ‘‘H–2B
held that DOL violated the procedural new mechanism for fulfilling the
petitions’’), filed by employers seeking
requirements of the APA when it statutory directive to ensure that the
to employ H–2B workers, but, as
established requirements that ‘‘set the importation of foreign workers will not
discussed earlier, Congress directed the
bar for what employers must do to harm the domestic labor market. See 8
agency to issue its decisions relating to
obtain approval’’ of the H–2A labor U.S.C. 1101(a)(15)(H)(ii)(b), INA section
H–2B petitions ‘‘after consultation with
certification application, including wage 101(a)(15)(H)(ii)(b). Moreover, if the
appropriate agencies of the
and housing requirements, in guidance temporary stay is lifted, the vacatur of
Government.’’ 8 U.S.C. 1184(c)(1), INA
documents. Mendoza v. Perez, 754 F.3d DOL’s 2008 rule will void the
section 214(c)(1). Legacy INS and now
1002, 1024 (D.C. Cir. 2014) (setting enforcement regime by which DOL has
DHS have historically consulted with
substantive standards for labor carried out its statutorily-delegated
DOL on U.S. labor market conditions to certification in the H–2A program enforcement authority. See 8 U.S.C.
determine whether to approve an requires legislative rules subject to the 1184(c)(14)(B), INA section
employer’s petition to import H–2B APA’s notice and comment procedural 214(c)(14)(B).
workers. See 73 FR 78104, 78110 (DHS) requirements). The APA therefore
(Dec. 19, 2008); 55 FR 2606, 2617 (INS) prohibits DOL from setting substantive 2. Good Cause To Proceed Without
(Jan. 26, 1990). DOL plays a significant standards for the H–2B program through Notice and Comment and With an
role in the H–2B program because DHS the use of guidance documents that Immediate Effective Date
‘‘does not have the expertise needed to have not gone through notice-and- The APA authorizes agencies to issue
make any labor market determinations, comment rulemaking. As a result, if and a rule without notice and comment
independent of those already made by when the temporary stay concludes, upon a showing of good cause. 5 U.S.C.
DOL.’’ 73 FR at 78110; see also 55 FR without this interim final rule, DOL will 553(b)(B). The APA’s good cause
at 2626. Without consulting with DOL, not be able to provide employers with exception to public participation
DHS lacks the expertise to adequately temporary labor certifications necessary applies upon a finding that those
make the statutorily mandated to allow importation of foreign workers procedures are ‘‘impracticable,
determination about the availability of under the H–2B program because DOL unnecessary, or contrary to the public
United States workers to fill the may not rely on subregulatory guidance interest.’’ 5 U.S.C. 553(b)(B). Although
proposed job opportunities in the standards, and has no prior rule to the term is not defined in the APA, the
employers’ Form I–129 petitions. See 8 reinstate. Accordingly, DOL would accompanying Senate report described
S2 U.S.C. 1101(a)(15)(H)(ii)(b), INA section again be forced to cease H–2B program ‘‘impracticable’’ as ‘‘a situation in which
ULE 101(a)(15)(H)(ii)(b); 78 FR 24047, 24050 operations, thus prohibiting DOL from the due and required execution of the
D with R (rDegHuSla–tDioOnLs )t h(Aerperf.o 2r4e, r 2e0q1u3ir)e. DemHSp loyers pcerortcifeiscsaitniog nte ampppolircaartyio enms palnody mpreenvta iling apgreenvecny tfeudn bcyti oitnss u wndouerltda kbien ugn pauvboliidca bly
RO to obtain a temporary labor certification wage requests, unless a rule was in rule-making proceedings.’’ S. Rep. No.
P
N1 from DOL before filing a petition with place. 752, 79th Cong., 1st Sess. 200 (1945).
V
PT DHS to import H–2B workers. See 8 CFR As with the two weeks in March 2015, The ‘‘‘[p]ublic interest’ supplements
V
K4 214.2(h)(6)(iii)(A), (C), (iv)(A). In the Departments are again facing the . . . ‘impracticable’ [and] requires that
S
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24048 Federal Register/Vol. 80, No. 82/Wednesday, April 29, 2015/Rules and Regulations
public rule-making procedures shall not another, which provides a sound following the court’s stay of the vacatur
prevent an agency from operating.’’ Id. foundation for the Departments’ good and upon resumption of the H–2B
Under the APA’s ‘‘good cause’’ cause to proceed without notice and program, those cases pending on the
exception to notice and comment, an comment. Moreover, even in the date of the vacatur created a backlog of
agency can take steps to minimize absence of another regulatory lapse, applications, while, at the same time,
discontinuity in its program after the confusion and disarray will persist in employers began filing new applications
court has vacated a rule. Mid-Tex Elec. the H–2B program as a result of for prevailing wages and certifications.
Coop. v. FERC, 822 F.2d 1123, 1131–34 uncertainty about the rules governing DOL worked diligently and quickly to
(D.C. Cir. 1987) (upholding good cause the program, which includes ambiguity address the backlog and simultaneously
to issue a post-remand interim rule); see about DOL’s ability to enforce keep up with new applications. Then,
protections afforded to U.S. and foreign
also Shell Oil Co. v. EPA, 950 F.2d 741, facing the expiration of the stay on April
workers, and this provides further good
752 (D.C. Cir. 1991) (observing that 15, 2015, DOL once again prepared to
cause to proceed with this interim final
where the agency had a regulatory void cease H–2B operations, which included
rule without notice and public
as the result of a vacatur of its rule, it posting a notice to the regulated
comment.
should consider issuing an interim rule community on its Web site that day
As an initial matter, DOL has already
under the good cause exception because announcing another closure, which was
had to cease operating the H–2B
of the disruptions posed by program for two weeks in March 2015, then obviated at the last minute by the
discontinuity in the regulations); Action
and faces this prospect again at the court’s extension of the stay late in the
on Smoking and Health v. Civil
expiration of the stay on or before May day on April 15. The next day, DOL
Aeronautics Bd., 713 F.2d 795, 800 (D.C.
15, 2015. Given the expectation of announced that despite its earlier
Cir. 1983) (same). Moreover, courts find
another regulatory void, were the announcement, it would continue to
‘‘good cause’’ under the APA when an
Departments to follow the standard APA operate the H–2B program as a result of
agency is moving expeditiously to
procedures, resumption of the H–2B the stay extension. These circumstances,
eliminate uncertainty or confusion that,
program would be substantially delayed which are beyond the Departments’
left to linger, could cause tangible harm
by the Departments’ issuance of a notice ability to control, have resulted in
or hardship to the agency, the program,
of proposed rulemaking and request for substantial disorder and upheaval for
program users, or other members of the
comment, the time-consuming process the Departments, as well as employers
public. See, e.g., Mid-Tex, 822 F.2d at
involved in analyzing and responding to and employees involved in the H–2B
1133–34 (agency had good cause to
comments, and the publication of a final program.
promote continuity and prevent
rule. Despite the fact that the statutory
‘‘irremedial financial consequences’’ This uncertainty and confusion is
cap on H–2B visas has been reached for
and ‘‘regulatory confusion’’); Nat’l Fed’n particularly applicable to DOL’s ability
FY 2015, employers would normally
of Fed. Employees v. Devine, 671 F.2d to enforce rights and obligations under
now start the process for applying for
607, 609, 611 (D.C. Cir. 1982) (agency the H–2B program. Even if the
temporary employment certifications for
had good cause based on emergency temporary stay were to continue beyond
FY 2016 by: Filing requests for
circumstances, including uncertainty Prevailing Wage Determinations May 15 or the court in Perez dismisses
created by pending litigation about (PWDs); performing the required the case (for example, finding that the
significant aspects of the program, and recruitment of U.S. workers; and plaintiff lacked standing), it is necessary
potential harm to agency, to program, submitting applications for temporary to dispense with notice and comment to
and to regulated community); Am. Fed’n employment certification. In the ensure that DOL has the continued
of Gov’t Emp., AFL–CIO v. Block, 655 absence of a rule, employers would not ability to take enforcement actions to
F.2d 1153, 1157 (D.C. Cir. 1981) (agency be able to take such actions.8Therefore, protect H–2B and U.S. workers. As
had good cause where absence of
DHS and DOL must act swiftly to enable discussed above, employers have
immediate guidance from agency would the agencies to meet their statutory challenged DOL’s independent
have forced reliance upon antiquated obligations under the INA and to regulatory authority in the H–2B
guidelines, causing confusion among prevent further economic dislocation to program, and courts have issued
field administrators and economic harm employers and employees in decisions both affirming and
and disruption to industry and anticipation of another regulatory void repudiating that authority. Compare La.
consumers); Woods Psychiatric Inst. v. that will occur upon resumption of the Forestry Ass’n v. Perez, 745 F.3d at 669,
United States, 20 Cl. Ct. 324, 333 (1990), Perez vacatur order. Bayou, 713 F.3d at 1084, and Perez, at
aff’d, 925 F.2d 1454 (Fed. Cir. 1991) Moreover, the on-again-off-again
slip op. at 6. As a result, one circuit has
(agency had good cause when program nature of H–2B program operations has
already found that DOL lacked
would continue to suffer administrative created substantial confusion,
independent regulatory authority to
difficulties that had previously resulted uncertainty and disarray for the
issue DOL’s 2012 H–2B rule, and a
in litigation and might continue to agencies and the regulated community.
district court has ruled similarly with
result in litigation due to uncertainty The original vacatur order in Perez
respect to the 2008 rule, which DOL
and confusion over scope of benefits, effectively required the agency to
relied on to fill the regulatory void
program standards, and eligibility immediately cease operation of the H–
created in 2012. Based on these adverse
requirements). Based on these legal 2B program, leaving unresolved
precedents, the 2008 rule—the only
standards and for the reasons set forth hundreds of time-sensitive pending
vehicle under which DOL can presently
D with RULES2 biptsheu eilbmo AlwipcP,r Aiatnhc’tsteei scrDteaaesbnptl deato arat rinmdsds enu ncoeott sint chcterios ana rrncyuld ult eocd outehm ntehdm aeetr nitt acpe8rpMtlioifcirecaoatviteoiron, ntshs ef.ro eTr m wpaorye bwvea epieeliktintsig ol nawst eoarng, e bseh aanlf do f apcdhromagllirenanimsgt—eesr w bayinl dle rmeenmpfloaoriyncee vr stuh ilenn eHcru–ar2brBlee n tto a nd
RO procedures. DOL and those employers H–2B workers who are exempt from, or have future enforcement proceedings based
N1P and employees who are involved in the already been counted toward, the H–2B visa cap. on the ground that the regulations DOL
VPTV H–2B program have already experienced Tthheessee c paept-ietixoenms pwt iwllo brek earfsfe acrtee du nifa ebmlep tloo ayperpsl yo ff or is seeking to enforce are void because
SK4 one regulatory lapse and anticipate temporary employment certifications. DOL exceeded its statutory authority in
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Federal Register/Vol. 80, No. 82/Wednesday, April 29, 2015/Rules and Regulations 24049
unilaterally issuing the 2008 rule.9In absence of this interim final rule, which §655.15(c) to permit easier submissions
this regard, the statute of limitations immediately replaces the 2008 rule, for H–2B program users; the rules that
under the APA would not likely be uncertainty, confusion and attendant apply to Administrative Law Judge
available to DOL in such challenges legal vulnerability arise each time DOL proceedings involving determinations
because, even where the statute of attempts to enforce the provisions of the under 8 U.S.C. 1184(c), section 214(c) of
limitations for a facial challenge has 2008 rule, putting critical protections the INA, at 29 CFR 503.40(b); and
run, a litigant may challenge statutory for U.S. and H–2B workers in jeopardy. implementation of the Congressional
authority for a rule in an enforcement Accordingly, even if the Perez mandate in §655.15(f) to permit
proceeding when the rule is applied to decision is ultimately dismissed on employers in the seafood industry
it.10See Wong v. Doar, 571 F.3d 247, 263 standing or other grounds or if the stay flexibility with respect to the entry into
n. 15 (2d Cir. 2009) (statute of is subsequently extended, the court’s the U.S. by their H–2B nonimmigrant
limitations for a substantive challenge earlier decision—finding on the merits workers. The first three provisions
‘‘begins to run at the time of the adverse that DOL lacked regulatory authority to (§§655.4, 655.15(c), 503.40(b)) are
agency action on the particular claim’’); issue the 2008 rule—has created procedural in nature, and the last
Indep. Cmty. Bankers of Am. v. Bd. of significant confusion about the provision incorporates a statutory
Governors of Fed. Reserve Sys., 195 F.3d continued viability of the 2008 rule. To requirement that DOL and DHS have
28, 34 (D.C. Cir. 1999) (‘‘We have leave the 2008 rule in place while the already implemented. The rulemaking
frequently said that a party against Departments pursue a new notice-and- record from the 2011–2012 proceeding
whom a rule is applied may, at the time comment rulemaking would prolong for remains fresh, and no new information
of application, pursue substantive many months the regulatory confusion relevant to policy decisions made
objections to the rule, including claims about the 2008 rule’s status and DOL’s during that proceeding has come to
that an agency lacked the statutory authority to enforce worker protections light. Therefore, the Departments have
authority to adopt the rule, even where and wages required under the 2008 rule satisfied the APA’s notice-and-comment
the petitioner had notice and and 2013 IFR. In the interim, in requirements where, after one full
opportunity to bring a direct challenge response to a challenge to any period of notice and comment for a rule,
within statutory time limits.’’); see also enforcement action under the 2008 rule, we reinstate a virtually identical rule
Coal River Energy LLC v. Jewell, 751 DOL may be required to defend the without an additional notice and
F.3d 659, 664 (D.C. Cir. 2014) (‘‘A validity of the 2008 rule. Such comment period. See Am. Mining Cong.
substantive defense is one based on an challenges could lead to inconsistent v. EPA, 907 F.2d 1179, 1191–1192 (D.C.
argument that a regulation is not outcomes, producing further instability Cir. 1990); Am. Fed’n of Gov’t
authorized by a statute or the in the program. Given the potential for Employees v. OPM, 821 F.2d 761, 764
Constitution, as opposed to a claim harm to U.S. and foreign workers if DOL (D.C. Cir. 1987). Accordingly, the
under the APA regarding the method is unable to effectively protect their Departments have good and sufficient
used in promulgating the regulation, rights, and uncertainty and confusion reason to rely on the APA’s good cause
such as that it was issued without about the status of the 2008 rule in the exception, 5 U.S.C. 553(b)(B), to issue
adequate notice, or that the government regulated community, the Departments without notice and comment this new
inadequately responded to comments.’’). conclude that it is impracticable and interim final rule.
Therefore, employers subject to contrary to the public interest to The APA also authorizes agencies to
enforcement under the 2008 rule have conduct a rulemaking proceeding under make a rule effective immediately upon
an available defense that DOL is without the APA’s notice and comment a showing of good cause instead of
regulatory authority to enforce rights requirements, and that they have good imposing a 30-day delay. 5 U.S.C.
and obligations in the H–2B program, and substantial cause to issue this rule 553(d)(3). The good cause exception to
leaving DOL in an untenable position immediately. the 30-day effective date requirement is
with respect to its ability to require Finally, the Departments also have easier to meet than the good cause
adherence to program standards. In the good cause to forego notice and exception for notice and comment.
comment because, as explained below, Riverbend Farms, Inc. v. Madigan, 958
9Such challenges cannot be adjudicated before this rule has already been subject to one F.2d 1479, 1485 (9th Cir. 1992); Am.
DOL Administrative Law Judges, but may be full round of notice and comment. On Fed’n of Gov’t Employees, AFL–CIO v.
brought in federal district court. See 2008 rule, 20 March 18, 2011, DOL proposed a Block, 655 F.2d 1153, 1156 (D.C. Cir.
CFR 655.75(d) (‘‘The administrative law judge shall
regulation and sought public input on 1981); U.S. Steel Corp. v. EPA, 605 F.2d
not render determinations as to the legality of a
regulatory provision or the constitutionality of a all issues addressed in this interim final 283, 289–90 (7th Cir. 1979). An agency
statutory provision.’’); see also Prince v. rule during a 60-day comment period. can show good cause for eliminating the
Westinghouse Savannah River Co., ARB No. 10– 76 FR 15130. As noted below, DOL 30-day waiting period when it
079, slip op. at 9 (ARB Nov. 17, 2010) (‘‘‘The Board received over 800 comments from a demonstrates urgent conditions the rule
shall not have jurisdiction to pass on the validity
of any portion of the Code of Federal Regulations wide variety of stakeholders, and seeks to correct or unavoidable time
that has been duly promulgated by the Department adapted the final rule in 2012 based on limitations. U.S. Steel Corp., 605 F.2d at
of Labor and shall observe the provisions thereof, those comments. 77 FR 10038 (Feb. 21, 290; United States v. Gavrilovic, 511
where pertinent, in its decisions.’’’) (quoting 2012). The public has by now had F.2d 1099, 1104 (8th Cir. 1977). For the
Secretary’s Order No. 1–2010 (Delegation of
Authority and Assignment of Responsibility to the notice and an opportunity to comment same reasons set forth above, we also
Administrative Review Board), sec. 5(c)(48), 75 FR on virtually every provision in this conclude that the Departments have
3924 (Jan. 15, 2010)). interim final rule. The only new good cause to dispense with the 30-day
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RO U.S.C. 2401(a); Harris v. FAA, 353 F.3d 1006, 1009 begun the employment certification 553(d)(3).
N1P (D.C. Cir. 2004) (‘‘Unless another statute prescribes process on the procedures to follow The Departments underscore that
VPTV o[uthnedrewr itshee, Aa sPuAit] cmhuasllte bneg cinogm fmineanl caegde nwciyt haicnti soinx under the new regulatory system; although we are implementing this
SK4 years after the right of action first accrues.’’) electronic filing procedures at interim final rule in advance of a period
D
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24050 Federal Register/Vol. 80, No. 82/Wednesday, April 29, 2015/Rules and Regulations
of public comment and without a 30- III. Revisions to 8 CFR Part 214 Application for Temporary Employment
day delay in the effective date, we seek Certification. DHS regulations at 8 CFR
Deletion of 8 CFR 214.2(h)(9)(iii)(B)(2)
public input on every aspect of this 214.2(h)(6)(iii)(D) recognize the
interim final rule (even though virtually DHS currently requires all H–2B Secretary of Labor as an appropriate
every provision herein has already gone petitions to be accompanied by an authority with whom DHS consults
through one round of notice and approved temporary labor certification. regarding the H–2B program, and
comment), and will assess that input See 8 CFR 214.2(h)(6)(iv)(A) (stating that recognize the Secretary of Labor’s
an H–2B petition for temporary authority, in carrying out that
and determine whether changes are
employment in the United States, consultative function, to issue
appropriate. As a result, the public
except for temporary employment on regulations regarding the issuance of
participation process will be preserved
Guam, must be accompanied by an temporary labor certifications. The
in this rulemaking proceeding, and we
approved temporary labor certification purpose of these regulations is for the
act only under the compulsion of the from the Secretary of Labor); 8 CFR Secretary of Labor to determine that: (1)
emergency conditions described above. 214.2(h)(6)(v) (stating that an H–2B There are not sufficient U.S. workers
3. Request for Comments on All Aspects petition for temporary employment on who are qualified and who will be
of This Interim Final Rule Guam must be accompanied by an available to perform the temporary
approved temporary labor certification services or labor for which an employer
Although this rule is being issued as issued by the Governor of Guam). These desires to import foreign workers; and
an interim final rule, the Departments regulatory provisions were enacted as (2) the employment of the H–2B
request public input on all aspects of part of DHS’s 2008 notice and comment worker(s) will not adversely affect the
the rule. The regulated community rulemaking on this topic. See DHS wages and working conditions of U.S.
should be familiar with the provisions Proposed Rule, 73 FR 49109, 48110 workers similarly employed. See 8 CFR
adopted in this interim final rule (Aug. 20, 2008); DHS Final Rule, 73 FR 214.2(h)(6)(iv)(A). It is through the
because they are largely the same as the 78104, 78104 (Dec. 19, 2008). regulatory provisions set forth below
Due to a drafting oversight, when that DOL ensures that the criteria for its
provisions adopted in the 2012 H–2B
enacting the requirements above, DHS labor certification determinations are
rule, Temporary Non-agricultural
inadvertently left untouched the met.
Employment of H–2B Aliens in the
provisions at 8 CFR
United States, 77 FR 10038 (Feb. 21, 2. §655.2 Authority of Agencies,
214.2(h)(9)(iii)(B)(2), which should have
2012). As part of the rulemaking been deleted. These provisions can only Offices and Divisions in the Department
proceeding that culminated in the 2012 be read to apply to the time, before of Labor
H–2B rule, DOL received, reviewed, and 2008, when DHS would accept petitions This section describes the authority of
considered 869 comments on its without a temporary labor certification. and division of activities related to the
proposal. Commenters represented a The 2008 DHS Proposed Rule (73 FR H–2B program among DOL agencies. It
broad range of constituents of the H–2B 49109) and DHS Final Rule (73 FR discusses the authority of the Office of
program, including small business 78104) make it clear that DHS intended Foreign Labor Certification (OFLC), the
employers, U.S. and H–2B workers, to require a temporary labor certification office within ETA that exercises the
worker advocacy groups, State to be submitted with an H–2B petition, Secretary of Labor’s responsibility for
Workforce Agencies (SWAs), agents, law and thus 8 CFR 214.2(h)(9)(iii)(B)(2) determining the availability of qualified
firms, employer and industry advocacy cannot be read to have any effect. U.S. workers and whether the
groups, union organizations, members Finally, the provision requiring that all employment of H–2B nonimmigrant
of the U.S. Congress, and interested H–2B petitions must be accompanied by workers will adversely affect the wages
members of the public. Those comments a temporary labor certification went and working conditions of similarly
resulted in DOL’s adjustment to or through notice and comment employed workers. It also discusses the
rulemaking. Thus, the deletion of 8 CFR authority of the Wage and Hour Division
further explanation of that rule, and are
214.2(h)(9)(iii)(B)(2) should be subject to (WHD), the agency responsible for
incorporated here as well. As a result,
the good cause exception under 5 U.S.C. investigation and enforcement of the
to the extent that any provision of part
553(b)(B) as such deletion is a terms and conditions of H–2B labor
655 of title 20 or part 503 of title 29 of
housekeeping matter and a minor certifications, as delegated by DHS.11
the Code of Federal Regulations adopted
technical amendment, which makes
in this rulemaking proceeding requires 3. §655.3 Territory of Guam
notice and comment unnecessary.
further interpretation or justification, we For these reasons, DHS will rescind 8 Under DHS regulations and pursuant
refer the public to the explanations of CFR 214.2(h)(9)(iii)(B)(2) in this interim to DHS’s consultative relationship with
the regulations contained in the prior final rule, consistent with 5 U.S.C. the Governor of Guam related to the H–
rulemaking docket. That prior notice 553(b)(B). 2B visa program on Guam, the granting
and comment proceeding does not of H–2B labor certifications and the
IV. Revisions to 20 CFR Part 655,
foreclose public input in this enforcement of the H–2B visa program
Subpart A
proceeding, during which the on Guam resides with the Governor of
Departments will jointly consider the A. Introductory Sections Guam. 8 CFR 214.2(h)(6)(v). Subject to
public comments and revise this interim
1. §655.1 Scope and Purpose of
final rule as appropriate. The 11Applications for temporary labor certification
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N1P and consider these comments prior to describes the Department’s role in WHD within DOL, to which DHS on January 18,
VPTV issuing a final rule. receiving, reviewing, adjudicating, and 2b0y0 t9h ed IeNleAga. t8e dU .eSn.fCo.r 1ce1m84e(nct) (a1u4t)h(Bo)r,i tIyN gAr asnetcetdio tno it
SK4 upholding the integrity of an 214(c)(14)(B); 8 CFR 214.2(h)(6)(ix).
D
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