Immigration Law

Editor's Corner: Can OFLC Overrule BALCA by FAQ? (On the Meaning of H-2B 'Worksite')

Daniel M. Kowalski, Oct. 5, 2016- "On April 15, 2016, BALCA held that for H-2B visa truckers, "[t]here is only one opening for full-time employment and it is where the trucking terminal is located. There is no “job opportunity” or opening for employment at the delivery location or on the road between the terminal and that location. Therefore, in the case of a Heavy and Tractor-Trailer trucker, the trucking terminal is the only worksite address within the meaning of the regulations, and the area of intended employment encompasses the geographic area within normal commuting distance of that location."  Matter of GT Trans, Inc., 2016-TLN-00029.

     A few weeks later, on May 10, 2016, the BALCA held: "Employer listed a total of seventeen worksites on its application but later explained that there was only one actual worksite—Oley, Pennsylvania. A Heavy and Tractor Trailer Truck Driver‟s worksite is the location where the job opportunity is, and where the drivers report to work. The truckers only commute to Oley to pick up their trucks. We accept the Employer‟s assertion that there is only one worksite. There is therefore only one area of intended employment which consists of the normal commuting distance around Oley. See 20 C.F.R. § 655.5; see also Preferred Landscape & Lighting, LLC, 2013-TLN-1 (Oct. 26, 2012)(noting that “the definition of „area of intended employment‟ . . . focuses almost exclusively on commuting distance”). Because there is no guidance as to how a trucking company is supposed to fill out the Form 9142 or how it is supposed to indicate travel, it would be fundamentally unfair to penalize the Employer for trying to disclose as much as possible on the application. It is incumbent upon OFLC to provide clarity to the trucking community. In this particular case, by submitting only one application for one worksite in one area of intended employment, Employer complied with the regulations."  Matter of Brook Ledge, Inc., 20016-TLN-00033.

     In Brook Ledge, the BALCA also stated, "The CO inexplicably states that OFLC‟s “long-standing” interpretation is that “an employer‟s H-2B application would be certified only if the trucking terminal, its delivery locations and the roads between them were either in one area of intended employment, or if the employer obtained certification for every area of intended employment including those locations.” (CO Brf. 14) (quoting GT Trans, Inc.). The CO does not explain when or how this interpretation was promulgated. It only cited a single BALCA case. Perhaps the CO is contending that a worksite is “any and all places where an employee performs job duties,” even though he did not explicitly state so. Id. Again, the CO is not articulating a definition or interpretation of worksite—it is simply citing to BALCA‟s guess at what the CO‟s definition actually is. We choose not to defer to this circular logic. ... Should the OFLC explain its “longstanding” definition, or issue guidance, BALCA will review such a policy under the abuse of discretion standard, and will “defer to the program agency where its actions, interpretative or otherwise, are reasonable and consistent with law, even where its choice is not compelled by law or regulation, and its choice may not be the best one among reasonable alternatives.” (CO Brf. 15) (citing Chevron USA, Inc., 467 U.S. at 842-43). As it currently stands, BALCA cannot defer to a nonexistent explanation. We find it would be arbitrary and capricious to enforce an unarticulated definition of worksite on an employer such that an entire industry is precluded from participating in the H-2B program when no notice or explanation was given. As we decided in GT Trans, a trucker‟s delivery locations are not necessarily worksites."

     The OFLC pushed back on October 4, 2016 by posting H-2B FAQ Round 17, “Worksites” and “Area of Intended Employment” in the H-2B Programto the DOL website.  In a footnote, the FAQ states, "With this authoritative interpretation of “worksite” as it is defined for purposes of the H-2B regulations, which reflects the Department’s long-standing and consistently held approach, we expressly reject the application to H-2B cases of the definition of “worksite” under the H-1B regulations, as suggested in GT Trans, Inc., 2016-TLN-00029 (April 15, 2016) and Brook Ledge, Inc. 2016-TLN-00033 (May 10, 2016). Because of the substantial differences between the nature and scope of the work in H-1B and H-2B, and the agency’s statutory and regulatory obligations in each program, the definitions of “worksite” are necessarily different for each program."

     I leave it to readers and scholars of administrative law to decide whether the Oct. 4th FAQ is "authoritative," and/or whether the OFLC can overrule the BALCA by means of a FAQ.  I, for one, do not think so.  (Full disclosure: the Preferred Landscape case cited above was my case, my client, and I have a substantial H-2B practice in which the definition of 'worksite' is often a problem.  I predict further litigation at BALCA and in federal least until DOL, through notice and comment, promulgates better regulations.)

- Daniel M. Kowalski, Editor-in-Chief, Bender's Immigration Bulletin.