Coalition Appeals Guestworker “Wage Rule” Decision


On January 7, the H-2B Workforce Litigation Committee, in which FRA participates, filed an appeal brief with the Philadelphia-based Third Circuit Court of Appeals, challenging Judge Legrome Davis’s unfavorable decision on our challenge to the Department of Labor’s guestworker wage rule under the H-2B visa program at the District Court level. The H-2B visa program governs employer access to non-immigrant aliens working in certain categories of seasonal employment, including hand-planting of tree seedlings.


The basis of our appeal is that Judge Davis

  • improperly excluded from consideration precedents that established the relevance of “employer hardship” in his decision and
  • that he erred in finding that the Department of Homeland Security had the right to delegate rulemaking authority in the case to the Department of Labor.


Oral arguments are yet to be scheduled.


Meanwhile, statements from the Administration indicate that an “overhaul of the immigration system” will be a high priority during the coming two years. Although the Administration’s obvious political objective is to build solidarity with Hispanic voters by easing a path to citizenship for illegal aliens, the talking points have included a comprehensive reform of several of our country’s temporary visa programs for guestworkers. According to the New York Times’ January 12 coverage, “The president’s plan would also impose nationwide verification of legal status for all newly hired workers; add visas to relieve backlogs and allow highly skilled immigrants to stay; and create some form of guest-worker program to bring in low-wage immigrants in the future.”


The political arithmetic sums, presumably, to Democrats supporting the “amnesty-with-path-to-citizenship” provisions and Republicans supporting more flexible guestworker policies, with these priorities enabling compromise in a comprehensive bill. For background on this issue, visit this link.