United States District Court, E.D. Pennsylvania
COMITE DE APOYO A LOS TRABAJADORES AGRICOLAS, et. al.
HILDA SOLIS, in her official capacity as United States Secretary of Labor, et. al
[Copyrighted Material Omitted]
For COMITE DE APOYO A LOS TRABAJADORES AGRICOLAS, PINEROS Y CAMPESINOS UNIDOS DEL NOROESTE, ALLIANCE OF FOREST WORKERS AND HARVESTERS, Plaintiffs:
ARTHUR N. READ, LEAD ATTORNEY, LIZ MARIA CHACKO, FRIENDS OF FARMWORKERS, INC., PHILA, PA; CLERMONT L. FRASER, LEAD ATTORNEY, THE NORTH CAROLINA JUSTICE CENTER, RALEIGH, NC; MARY C. BAUER, LEAD ATTORNEY, SOUTHERN POVERTY LAW CNETER, MONTGOMERY, AL; MEREDITH B. STEWART, LEAD ATTORNEY, SOUTHERN POVERTY LAW CENTER, NEW ORLEANS, LA; MICHELLE R. LAPOINTE, LEAD ATTORNEY, SOUTHERN POVERTY LAW CTR, ATLANTA, GA; D. MICHAEL DALE, NORTHWEST WORKERS' JUSTICE PROJECT, PORTLAND, OR; EDWARD TUDDENHAM, LAW OFFICE OF EDWARD TUDDENHAM, NEW YORK, NY.
For SALVADOR MARTINEZ BARRERA, Plaintiff:
ARTHUR N. READ, LEAD ATTORNEY, LIZ MARIA CHACKO, FRIENDS OF FARMWORKERS, INC., PHILA, PA; CLERMONT L. FRASER, LEAD ATTORNEY, THE NORTH CAROLINA JUSTICE CENTER, RALEIGH, NC; MARY C. BAUER, LEAD ATTORNEY, SOUTHERN POVERTY LAW CNETER, MONTGOMERY, AL; MEREDITH B. STEWART, LEAD ATTORNEY, SOUTHERN POVERTY LAW CENTER, NEW ORLEANS, LA; MICHELLE R. LAPOINTE, LEAD ATTORNEY, SOUTHERN POVERTY LAW CTR, ATLANTA, GA; D. MICHAEL DALE, NORTHWEST WORKERS' JUSTICE PROJECT, PORTLAND, OR; EDWARD TUDDENHAM, LAW OFFICE OF EDWARD TUDDENHAM, NEW YORK, NY; RACHEL LYN MICAH-JONES, MIGRANT RIGHTS CENTER, LAKE WORTH, FL.
For UNITED STATES DEPARTMENT OF LABOR, ALEXANDER J. PASSANTINO, IN HIS OFFICIAL CAPACITY AS ACTING ADMINISTRATOR OF THE WAGE AND HOUR DIVISION OF THE UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF HOMELAND SECURITY, HILDA SOLIS, IN HER OFFICIAL CAPACITY AS UNITED STATES SECRETARY OF LABOR, JANET NAPOLITANO, IN HER OFFICIAL CAPACITY AS UNITED STATES SECRETARY OF HOMELAND SECURITY, Defendants: GEOFFREY FORNEY, LEAD ATTORNEY, JESSICA W.P. D'ARRIGO, UNITED STATES DEPARTMENT OF JUSTICE, WASHINGTON, DC.
For OUTDOOR AMUSEMENT BUSINESS ASSOCIATION, INC., THE LOUISIANA FORESTRY ASSOCIATION, INC., FOREST RESOURCES ASSOCIATION, INC., UTILITY SPRAYERS ALLIANCE, Amicus: R. WAYNE PIERCE, THE PIERCE LAW FIRM LLC, ANNAPOLIS, MD.
Legrome D. Davis, J.
Plaintiffs Comité de Apoyo a los Trabajadores Agrí colas (" CATA" ), Pinerosy Campesinos Unidos del Noroeste (" PCUN" ), Alliance of Forest Workers and Harvesters (" the Alliance" ), and Salvador Martinez Barrera challenge federal regulations promulgated by Defendant agency, the Department of Labor. The case is now before the Court on Plaintiff's Motion for Permanent Injunctive Relief. (Doc. No. 152).
I. Factual Background
a. The H-2B Program
The H-2B visa program--named for the statutory section under which it was created -- allows United States employers to bring foreign workers (" H-2B workers" ) to the United States to perform temporary, unskilled, non-agricultural work. The H-2B program is distinct from the H-1B worker program, which permits aliens to temporarily enter the United States to perform skilled, " specialty occupations," and from the H-2A program, which permits aliens to temporarily enter the United States to perform unskilled, agricultural labor.
The H-2B program is the result of significant political compromise. The program seeks to balance certain industries' temporary need for unskilled foreign workers against a policy interest in protecting United States workers' jobs, salaries, and working conditions. In furtherance of these dual considerations, the Immigration and Nationality Act (INA) permits the issuance of H-2B visas, only where inter alia: (1) unemployed persons capable of performing such services cannot be found in this country; and (2)
the employment of such aliens will not adversely affect the wages and working conditions of United States workers. 8 U.S.C. § 1101(a)(15)(H)(ii)(b); 8 U.S.C. § 1182 (a)(5)(A)(i)(I)-(II).
b. Administration of the H-2B Program
The H-2B program is administered by the Department of Homeland Security (DHS) in conjunction with the Department of Labor (DOL).
The INA confers broad authority upon the DHS to admit aliens to this country and to promulgate regulations regarding the issuance of nonimmigrant visas.  The statute further provides that: " [t]he question of importing any alien as a nonimmigrant . . . in any specific case or specific cases shall be determined by [the DHS], after consultation with appropriate agencies of the Government." 8 U.S.C. § 1184(c)(1).
In accordance with the INA, DHS regulations require that the Secretary of Labor determine and certify to the DHS that H-2B applications comport with the INA's requirements. Accordingly, prior to filing an H-2B petition with the DHS, an employer must first apply for and receive a temporary labor certification from the Secretary of Labor. 8 C.F.R. § 214.2 (h)(6)(iii) (2011). Such certification constitutes the DOL's " advice" that the DHS should grant the requested H-2B visa and the certification must confirm that: (1) qualified workers in the United States are not available to perform the position sought; and (2) the alien's employment will not adversely affect wages and working conditions of similarly employed United States workers. 8 C.F.R. § 214.2 (h)(6)(iii)(A), (iv)(A). DHS regulations instruct that the DOL shall " establish procedures" for administering labor certifications within these confines. 8 C.F.R. § 214.2 (h)(6)(iii)(D).
c. Prevailing Wages
In order to issue a labor certification, the DOL must determine as a threshold matter, that qualified United States workers are not available to fill the position for which an employer seeks foreign workers. As the availability of United States workers is, for obvious reasons, largely determined by the wages that an employer offers, the DOL may only issue labor certifications where United States workers are unavailable to fill a given position at the occupation's " prevailing wage." Labor Certification Process and
Enforcement for Temporary Employment in Occupations Other Than Agriculture or Registered Nursing in the United States (H-2B Workers), and Other Technical Changes, 73 Fed. Reg. 78020-01, 78056 (as codified at 20 C.F.R. § 655.10(b)(2)) (Dec. 19, 2008). Accordingly, to apply for a labor certification, an employer must first obtain from the DOL a prevailing wage determination for the area of intended employment, submit a work order with a state workforce agency serving the geographical area of intended employment, and advertise the position at a wage equal to or higher than the prevailing wage, as established by the DOL. Id. at 78022-23.
i. Calculation of Prevailing Wages
The DOL's calculation of prevailing wages is of central importance to the H-2B program's success. Nonetheless, over the past three decades, the DOL has periodically changed its method for calculating prevailing wages, without notice and comment, and often without explanation.
From about 1986 until 2008,  the DOL issued a series of guidance letters governing the calculation of H-2B prevailing wages. The DOL's initial guidance letters charged state workforce agencies with making prevailing wage determinations for H-2B occupations, and provided that, in the absence of a collective bargaining agreement, state agencies should use the methodologies set forth in the Davis-Bacon Act (" DBA" ),  and the McNamara-O'Hara Service Contract Act (" SCA" ),  to determine prevailing wages.  Under this system, state workforce agencies calculated a single prevailing wage for any given occupation in the area of intended employment.
In the mid-1990s, the DOL altered its wage methodology to create multiple prevailing wages for each H-2B occupation. The DOL initially divided each H-2B occupation into two skill levels-- " entry level" (" Level I" ) or " experienced level" (" Level II" )--and calculated a prevailing wage for each level.  In 2005, the DOL further divided unskilled, H-2B occupations into four skill and wage levels,  borrowing from a system that Congress created to calculate prevailing wages for the H-1B program's skilled, " specialty occupations."  Both of these changes were achieved through DOL guidance letters and were not subject to notice and comment rulemaking.
ii. The 2008 Regulations
On December 19, 2008, the DOL first promulgated regulations to govern H-2B
labor certification.  The 2008 regulations alter H-2B certification in a number of significant ways. Importantly, the DOL adopted the " 2008 Wage Rule" which states: " the prevailing wage for labor certification purposes shall be the arithmetic mean . . . of the wages of workers similarly employed at the skill level in the area of intended employment." 
It is undisputed that, in applying the 2008 Wage Rule's phrase " at the skill level," the DOL uses the four-tier methodology that Congress created for the H-1B program and which the DOL adopted without notice and comment in 2005. That is, under the 2008 Prevailing Wage Rule, the DOL divides each unskilled, H-2B occupation into four separate skill levels and calculates a prevailing wage for each level. With this rule in place, the DOL grants labor certifications for H-2B workers, so long as " qualified" United States workers are not available at the " prevailing wage," in the area of intended employment and at the particular skill level sought. The vast majority of employers who apply for H-2B labor certifications seek workers at an occupation's lowest skill and wage level. 
II. Procedural History
Plaintiffs initiated the instant litigation in 2009, challenging various aspects of the DOL's 2008 regulations as improperly promulgated under the Administrative Procedure Act (APA).  Among those ...