H-2B Visas And The Making Of An 'Ultra Vires' Regulation - Daniel M. Kowalski (Law360)

Daniel M. Kowalski, July 25, 2017 - "[O]n July 19, 2017, DHS and the DOL jointly published a temporary rule in the Federal Register, effective immediately, authorizing the issuance of an additional 15,000 H-2B visas through the end of fiscal year 2017, i.e., Sept. 30. For many H-2B-dependent employers, this was too little, too late. Most landscaping companies, for example, begin sending their workers home after Thanksgiving. Given the two- to four-week or more processing time for the new visas, precious little work time remains in the season.

[T]he real problem with the temporary rule is the requirement that employers attest, under penalty of perjury, that “if they do not receive all of the workers under the cap increase, they are likely to suffer irreparable harm, i.e., suffer a permanent and severe financial loss.” (emphasis added). To be blunt, there simply is no statutory or regulatory authority for this “irreparable harm” attestation requirement. It is 100 percent "ultra vires," a Latin phrase meaning "beyond the powers," and subject to challenge in court … except for the “dead man switch” at the end of the temporary rule: “[I]n the event the attestation requirement is enjoined or held invalid, the remainder of the regulation, … is also intended to cease operation …” In effect, DHS and the DOL are saying to employers, “We know this attestation requirement is illegal, but if you sue us, we’ll blow the whole thing up.”

- Daniel M. Kowalski is the managing partner of Ware | Immigration in Centennial, Colorado, and the editor-in-chief of Bender’s Immigration Bulletin (published by LexisNexis).