In a new opinion on September 3, 2015 in the case of G.H. Daniels III & Assoc. v. Perez, the Tenth Circuit challenged the Department of Homeland Security’s practice of delegating the issuance of regulations for the H-2B program to a different agency. And aside from possibly changing the law and challenging the agency on bad practices, it has a very helpful explanation of what has gone so terribly wrong with the H-2B program.
Background on the H-2B Visa Program
The H-2B visa statute permits the Department of Homeland Security (DHS) to admit workers to travel to the U.S. to perform temporary nonagricultural labor. The statute requires the DHS to be the final decision-maker. However, before the DHS can make a decision, the Department of Labor (DOL) has to issue a temporary labor certification, which advises the DHS about the labor conditions in the area of proposed employment.
Prior to 2008, the DOL’s role was advisory: even if it decided not to issue a certification, the DHS could still grant the visa. As the Tenth Circuit has now stated
All this was quite consistent with the relevant statute. But things changed.
The court explained that in 2008, new regulations were issued giving the DOL veto power – it could decline to issue a certification, in which case the DHS could not approve the visa. But that was just the beginning.
One court has since ruled that the DOL had no authority to issue regulations. Perez v. Perez, No. 14-cv-682/MCR/EMT, Docs. 14 & 15 (N.D. Fla. Mar. 4, 2015). The DOL then decided the only thing it could do was to “shut down the H-2B program” altogether. See 80 Fed. Reg. 24,042, 24,046 (Apr. 29, 2015). Employers this last year went through a veritable roller-coaster-ride if they were applying for H-2B visas. Most gave up or had their applications denied when the government stopped processing them.
After the shut-down, the DHS and DOL issued a joint interim final rule on the certification process. So, for now, the system is back up and running again.
The Problem in G.H. Daniels
The court in G.H. Daniels noted that even though much has changed since the regulations were issued in 2008, they’re still on the books. It held that the DHS didn’t have the authority to delegate its decision-making power to the DOL, because the statute only permitted the DOL to give advice and consultation to the DHS. It didn’t allow the DOL to make the final decision. So, the Tenth Circuit sent the case back to the lower court to issue a new decision.
What Happens Next?
It’s hard to say what the outcome will be here. The Tenth Circuit sent the case back to the lower court to issue a decision consistent with its ruling. But other than say that the DOL’s regulations from 2008 are null and void, it’s not clear what else the plaintiffs want or what the court can do. Importantly, the plaintiffs also challenged visa denials in their own cases, but the court dismissed those claims. So, on remand, the lower court isn’t going to be in a position to grant the visas these employers had sought.
It’s a little surprising the Tenth Circuit didn’t find this issue to be moot, because the DOL and the DHS have since issued their “joint rule” on H-2B processing. But given that the joint rule, just like the 2008 regulations, gives the DOL veto power, this decision is likely to change the H-2B landscape once again in ways that are yet to be seen.