E.D. Pa. Vacates 2008 H-2B Wage Rule: CATA v. Solis

"Labor certifications issued under the 2008 Wage Rule exceed the DOL’s delegated authority. The INA and DHS regulations define a small subset of individuals to whom the DOL may grant labor certifications if, and only if, the DOL can assure that such individuals’ receipt of H-2B visas will not adversely affect United States workers. While the DOL lacks authorization to issue labor certifications absent such assurance, the DOL acknowledges that certifications granted under the 2008 Wage Rule “artificially lower[ ] wage[s] to a point that [they] no longer represent[ ] market-based wage[s] for the occupation” and that such certifications “cannot help but have a depressive effect on the wages of [United States workers].” 76 Fed. Reg. 3452-0176, 3477. Accordingly, labor certifications issued under the 2008 Wage Rule fall directly outside the narrow range of circumstances under which the DOL is authorized to issue labor certifications and exceed the bounds of the DOL’s delegated authority under Section 706(2)(C) of the APA. We therefore invalidate the 2008 Wage Rule under this provision. ... The DOL argues that, despite the 2008 Wage Rule’s procedural and substantive flaws, the disruptive consequences of vacatur outweigh the seriousness of the 2008 Wage Rule’s deficiencies. In support of this assertion, the DOL highlights that, when a rule is vacated, an agency generally reverts to the status quo ante (the prior rule). In this case, however, there is not a valid prior rule upon which the DOL can rely, because the DOL similarly violated the APA’s rulemaking procedures in creating the predecessor wage-regime. The DOL now argues that vacatur would be unusually disruptive, because the DOL’s history of APA violations has left the DOL without a valid regulatory mechanism with which to implement the H-2B program, thereby requiring that the DOL grant labor certifications on an individual, ad hoc basis until the DOL promulgates a valid rule.  We find the DOL’s arguments unpersuasive. Although vacating the 2008 Rule might disrupt the H-2B program’s current structure, Congress has not granted the DHS and DOL unfettered authority to issue H-2B visas. Rather, in passing the INA, Congress defined a small subset of individuals who may receive H-2B visas if, and only if, the DHS can ensure that such visas will not adversely affect United States workers. Absent this assurance, the DHS is not authorized to issue H-2B visas.  Despite clear constraints on the DHS and DOL’s authority, the DOL explicitly finds that the 2008 Wage Rule creates cognizable adverse consequences for United States workers. Accordingly, our vacating the 2008 Wage Rule will only disrupt the H-2B program to the extent that the DHS and DOL use the program to issue H-2B visas that they are expressly prohibited from granting. In light of the extent and seriousness of the DOL’s errors, as well as the DOL’s representation that the DOL is not engaging in efforts to validly grant H-2B labor certifications, this consequence hardly compels leaving the 2008 Wage Rule in place, even under the D.C. Circuit’s jurisprudence. For the foregoing reasons, we find that vacatur of the 2008 Wage Rule is the only appropriate remedy under these unusual circumstances. ... For the foregoing reasons, Plaintiffs’ Motion for Permanent Injunctive Relief is GRANTED. The 2008 Wage Rule, 73 Fed. Reg. 78020-01, 78056 (as codified at 20 C.F.R. § 655.10(b)(2)) (Dec. 19, 2008), is VACATED AND REMANDED to the Department of Labor. The DOL shall come into compliance within thirty (30) days." - CATA v. Solis, Mar. 21, 2013.