The opinion of the court was delivered by: Pollak, J.
The plaintiffs in this case have challenged the Department of Labor's decision to delay, by almost one year, the effective date of a set of regulations that govern the wages of H-2B workers. For the reasons discussed below, the court finds that the DOL violated the Administrative Procedure Act by imposing the delay without engaging in notice and comment. The court also finds that the DOL acted in contravention of the Immigration and Nationality Act because it justified the delay by pointing to potential hardship to employers-a consideration that is outside the scope of the DOL's congressional mandate.
This case involves a challenge to various regulations governing the DOL's H-2B visa program.*fn1 On August 30, 2010, this court invalidated, inter alia, two provisions governing the calculation of wages that employers must pay to foreign H-2B workers. Dkts. 80, 81. These wage provisions, contained in 20 C.F.R. § 655.10(b)(2), were remanded to the DOL without vacatur and with instructions to promulgate new rules by December 28, 2010.
Concerned that the DOL would not promulgate new rules that were effective on December 28, 2010, plaintiffs filed a Rule 59 motion asking this court to mandate that the new rules be effective, not simply published, by December 28. On October 27, in ruling on that motion, this court clarified that its August 30 order only required DOL to publish new rules by December 28. Dkt. 94. The court also granted the DOL a 21-day extension, such that it was required to publish new rules by January 18, 2011.
In compliance with this court's orders, the DOL issued revised prevailing wage regulations on January 18, 2011. See Wage Methodology for the Temporary Non-Agricultural Employment H-2B Program, 76 Fed. Reg. 3452 (Jan. 19, 2011) ("the Wage Rule"). However, in order to "provide employers with sufficient time to plan for their labor needs," the new rule "applies only to wages paid for work performed on or after January 1, 2012." Id. at 3462. Moreover, in the text of the Wage Rule, the DOL requested comments on the issue of whether the Wage Rule should be "phased in" to reduce its disruptive impact. Specifically, the DOL sought comment on (1) whether a phase-in is desirable, (2) what impact a phase-in would have on workers and employers, and (3) what period and at what levels a phase-in should be implemented. Id. Though the DOL requested these comments, it emphasized that the new rule is "a final rule, without a phase-in period." Id.
Shortly after publication of the Wage Rule, the plaintiffs filed a Motion for an Order Enforcing the Judgment, which is currently before the court.*fn2 Dkt. 103. In this motion, plaintiffs assert that the Wage Rule is defective because it violates this court's prior orders, the Administrative Procedure Act (APA), and/or the Immigration and Nationality Act (INA). Specifically, plaintiffs argue that the DOL has violated this court's orders because 1) the Wage Rule is not a final rule, and 2) even if it is a final rule, the delayed effective date contravenes the intent behind the court's prior orders. As to the APA and INA violations, plaintiffs contend that
1) the delayed implementation of the Rule should have been subject to notice and comment, and
2) the delayed implementation of the Rule is an impermissible effort to alleviate employer hardship.*fn3
For the reasons that follow, the court agrees that the January 1, 2012 effective date should be vacated.
1) Does the Wage Rule violate this court's prior orders?
A. Soliciting comments regarding a phase-in of the Wage Rule
The plaintiffs argue that the DOL has failed to promulgate a final rule because the effective date of the wage rule was "indefinitely delayed . . . until sometime on or after January 1, 2012." Pl.'s Mem. in Supp. at 1 (dkt. 103-1). Specifically, plaintiffs protest that the Wage Rule included a solicitation for comments on the desirability of phasing in the Wage Rule. See 76 Fed. Reg. at 3462. Plaintiffs seize on this facet of the Wage Rule to argue that there is no final effective date for the rule and thus that the rule cannot be deemed "final." Plaintiffs ...