Does the New H-2B Rule Solve the Problem?

Leland E. Beck writes: "The Department of Homeland Security (DHS) and the Department of Labor (DOL) moved quickly – perhaps too quickly – to resolve legal authority issues raised by recent court decisions vacating low-skilled worker visa (H-2B) regulations by adopting a “joint” interim final rules (IFR) that is available for public inspection and will be published in tomorrow’s Federal Register.  Recent court decisions vacated specific prior rules and affirmed a preliminary injunction that held that DOL had no authority to promulgate H-2B regulations at all.  The IFR to be published tomorrow tries to resolve those issues through promulgation by the agency that clearly has authority, but the methods used to promulgate the rule raise more questions, and, in reality, the agency with authority is not promulgating such a rule. ... Nowhere does DHS make it clear that it may “delegate” regulatory authority to DOL or that such a redelegation of statutory authority is lawful, not a reorganization, and consistent with limitations on appropriations.  DOL’s promulgation of a regulation reasserts the authority that was denied by the 11th Circuit in Bayou Lawn & Landscaping.  This hasty remodeling does not accomplish a satisfactory result but reiterates the Department of Justice (DOJ)’s assertion that the Bayou Lawn & Landscaping preliminary injunction – and apparently the 11th Circuit – was wrong."