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Litigation Timeline: H-2B Prevailing Wage Methodology (Updated 10/27/14)

Cite as "AILA InfoNet Doc. No. 10100171 (posted Oct. 27, 2014)"

September 9, 2014

The district court found it would be improper to compel DOL to initiate formal rulemaking to replace the invalidated 2008 H-2B regulations and allows DOL to continue the effectiveness of the challenged 2008 rules. (AILA Doc. No. 14102761.)

February 5, 2014
The Third Circuit upheld the U.S. District Court for the Western District of Louisiana’s August 20, 2012 decision granting summary judgment for the government, finding that the January 19, 2011 H-2B final wage rule, which eliminated the four-tier wage methodology in favor of a mean OES wage, was lawfully promulgated by DOL and did not violate the APA or INA.


January 17, 2014
H.R. 3547, the Consolidated Appropriations Act of 2014 takes effect, lifting the appropriations ban on the January 19, 2011 wage rule.


December 23, 2013
DOL alert that it has postponed action on the 12/3/13 Island Holdings decision as a class action complaint has been filed. All OFLC actions related to the resolution of appeals in the supplemental prevailing wage decisions will be stayed, pending resolution of the court action (AILA Doc. No. 13122348).


December 13, 2013
Letter from DOJ to Third Circuit Court of Appeals regarding Louisiana Forestry Ass'n v. Secretary of Labor, indicated that BALCA's Island Holding decision does not reflect the legal position of the Secretary of Labor because BALCA erroneously rejected the Secretary's own plain interpretation of the relevant regulatory provisions. The letter further indicates that because the BALCA decision does not represent the agency's legal determination, the decision has no bearing on the questions presented in the Louisiana Forestry appeal.


December 5, 2013
Letter from Pierce Law Firm, LLC to Third Circuit Court of Appeals advising that a "related case" to Louisiana Forestry Ass'n v. Secretary of Labor has been decided.


December 3, 2013
BALCA vacated supplemental prevailing wage determinations (PWDs) and the increased wage that they purport to impose because DOL regulations do not require an employer to comply with a PWD issued after the ETA Form 9142 has been approved and granted. (Matter of Island Holdings LLC, 12/3/13) (AILA Doc. No. 13120449.)


August 30, 2013:
DOL published a final rule delaying the effective date indefinitely of the 2011 wage methodology for the H-2B program.


July 23, 2013:
DOL publishes Notice of Proposed Rulemaking to delay indefinitely the effective date of the 2011 H-2B wage rule.


April 25, 2013:
USCIS
announces that it has resumed processing of all H-2B petitions following the publication of the DHS/DOL interim final rule and provides instructions for employers on the requirement to pay the new wage.


April 24, 2013:
DHS and DOL publish a joint interim final rule revising how DOL provides the consultation that DHS has determined is necessary to adjudicate H-2B petitions by revising the methodology by which DOL calculates H-2B prevailing wages. The rule also revises DHS rules to clarify that DHS is the agency charged with determining H-2B eligibility after consulting with DOL. The interim final rule is effective April 24, 2013.


DOL issues new FAQs on H-2B prevailing wages and resumes processing of pending H-2B prevailing wage requests and H-2B applications for temporary labor certification based on the OES wage survey data, in accordance with standards in the interim final rule.


April 2, 2013:
USCIS announces that effective March 22, 2013, it is temporarily suspending adjudication of most Form I-129 H-2B petitions while the government considers appropriate action in response to the court order.


April 1, 2013:
DOL clarifies that although it is holding in abeyance most H-2Bs as a result of the March 21, 2013 permanent injunction, it will continue to process H-2Bs where the wage is based on a collective bargaining agreement, acceptable private wage survey, the Service Contract Act, or Davis Bacon Act.


March 29, 2013:
DOL postpones the effective date of the 2011 H-2B wage rule to October 1, 2013 in light of the anticipated enactment of the Consolidated and Further Continuing Appropriations Act of 2013, which prohibits any funds from being used to implement the rule for the remainder of FY2013.


March 28, 2013:
DOL announces that it is holding in abeyance most pending H-2B prevailing wage requests due to the permanent injunction in CATA v. Solis.


March 21, 2013:
In CATA v. Solis, the U.S. District Court for the Eastern District of Pennsylvania granted a permanent injunction against the operation of the portion of DOL's December 19, 2008 wage rule related to the issuance of prevailing wage determinations using the 4-tier OES wage system. The court gave DOL 30 days to comply with the court order.


October 2, 2012:
DOL postpones the effective date of the 2011 H-2B wage rule to March 27, 2013 in anticipation of the enactment of H.J. Res. 117, which continues DOL appropriations from the December Appropriations Act until March 27, 2013.


August 20, 2012:
In Louisiana Forestry Association v. Solis, the U.S. District Court for the Western District of Louisiana granted summary judgment for the defendant, finding that DOL has the authority to make the wage rules, and the rulemaking did not violate the APA.


December 30, 2011:
DOL postpones the effective date of the 2011 H-2B wage rule to October 1, 2012 as a result of the 2012 Consolidated Appropriations Act, which prohibits any funds from being used to implement the rule for the remainder of FY2012.


November 29, 2011:
DOL postpones the effective date of the 2011 H-2B wage rule to January 1, 2012 as a result of the Consolidated and Further Continuing Appropriations Act of 2012, which prohibits any funds from being used to implement, administer, or enforce the rule before January 1, 2012.


September 28, 2011:
Due to pending legal challenges, DOL postpones the effective date of the 2011 H-2B wage rule to November 30, 2011.


September 21, 2011:
Bayou Lawn & Landscape, et al. files suit in the Northern District of Florida raising similar claims as those raised by Louisiana Forestry in the Western District of Louisiana and also asking the court to preliminarily and permanently enjoin implementation of the rule.


September 7, 2011:
Louisiana Forestry Association, Inc. et al. files suit against DOL in the Western District of Louisiana, claiming that the wage rule and the subsequent rule amending the effective date violate the Takings Clause of the Fifth Amendment, the APA, the Regulatory Flexibility Act, and the INA. LFA seeks a temporary and permanent injunction barring DOL from implementing the wage rule.


August 1, 2011:
DOL publishes a final rule amending the effective date of the 2011 H-2B wage methodology rule to September 30, 2011.


June 15, 2011:
The CATA v. Solis district court vacates the January 1, 2012 effective date of the H-2B final wage rule, finding that DOL violated the APA by delaying the effective date without notice and comment. The court ordered DOL to announce a new effective date 45 days from June 15.


January 19, 2011:
DOL publishes its final rule, "Wage Methodology for the Temporary Non-agricultural Employment H-2B Program," with a delayed effective date of January 1, 2012.


November 12, 2010:
AILA submits comments in response to DOL's proposed rule.


October 27, 2010:
The CATA v. Solis court extends the deadline by which DOL must promulgate its final rule until January 18, 2011.


October 5, 2010:
DOL publishes its proposed rule to revise the methodology used for making prevailing wage determinations for H-2B non-agricultural workers.


August 30, 2010:
In CATA v. Solis, the U.S. District Court for the Eastern District of Pennsylvania invalidates portions of the December 19, 2008 DOL final rule regarding the use of skill levels in establishing prevailing wages and the use of OES data in lieu of Davis Bacon and Service Contract rates. The court orders DOL to promulgate new regulations on H-2B prevailing wage calculations within 120 days.


December 19, 2008:
DOL publishes its final rule amending its regulations regarding the issuance of temporary labor certifications to employers sponsoring H-2B nonimmigrants, including provisions changing the method for determining H-2B prevailing wages.

 
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