Comite de Apoyo a los Trabajad v. Perez, No. 14-3557 (3d Cir. 2014)
Annotate this CaseThe H-2B visa program allows U.S. employers to seek admission of foreign workers to perform temporary unskilled non-agricultural work by demonstrating that the employment of foreign workers will not adversely affect the wages and working conditions of U.S. workers. 8 U.S.C. 1101(a)(15)(H)(ii), 1182 (a)(5)(A)(i)(I)-(II). The employer must obtain certification from the Department of Labor (DOL) that: qualified workers are not available at the “prevailing wage” in the U.S. to perform the employment in question, and the aliens’ employment will not adversely affect wages and working conditions of similarly employed U.S. workers. DOL has often changed its method for calculating prevailing wages without giving notice or an opportunity to comment and without explanation. Opponents challenged 20 C.F.R. 655.10(f) and the 2009 Wage Guidance, which authorized use of privately-funded surveys to set the prevailing wage for certain occupations. A district court ruled in favor of the opponents. Following notice and comment, DOL announced the 2011 Wage Rule, but has continued to use the 2009 Guidance, having postponed the 2011 Rule’s effective date because it was subject to congressional appropriations riders precluding its implementation. The district court dismissed a challenge. The Third Circuit reversed, holding that the case was ripe and that the 2009 Guidance was arbitrary and violated the APA.
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