On April 1st, the Eleventh Circuit Court of Appeals issued a landmark decision holding that the U.S. Department of Labor (DOL) lacks the authority to issue rules in connection with the H-2B program, which permits U.S. employers or U.S. agents who meet specific regulatory requirements to bring foreign nationals to the United States to fill temporary nonagricultural jobs. Greenberg Traurig, LLP represented the U.S. Chamber of Commerce as one of the named plaintiffs in this suit.

The decision rejected the DOL’s argument that it had the implied authority to issue H-2B rules under 8 U.S.C. 1184(c)(1) based on the statute’s “in consultation with” language, concluding that “[t]his is an absurd reading of the statute and we decline to adopt it. DHS was given overall responsibility, including rulemaking authority, for the H-2B program. DOL was designated a consultant. It cannot bootstrap that supporting role into a co-equal one.” The Court further denied the DOL’s reliance on 8 U.S.C.(a)(15)(H)(ii)(b), holding that the Congress’ express grant of rulemaking authority to the agency over the H-2A program signaled that it had intentionally declined to extend similar powers with respect to the H-2B rules. The decision also referenced a similar argument in rejecting the DOL’s contention that the “text, structure and object” of the INA afforded the agency rulemaking authority, concluding that “this would be a more appealing argument if Congress had not expressly delegated that authority to a different agency.” Finally, the Court held that concerns about potential delays in rule implementation could not overcome a legal challenge to the agency’s inherently overbroad scheme of rulemaking, stating “[i]f the ‘entire regulatory program’ is ultra vires, then it should be called into question.”

The decision upholds a lower court’s ruling for a preliminary injunction against the implementation of the DOL’s H-2B rules, with a permanent injunction expected in the near future. For a complete copy of the Court’s decision, please click here.