Nation of Immigrators
Leon also represents a group of plaintiffs in a pending suit against the DOL challenging its administration of the H-2B visa program.
Because he knows whereof he speaks, this post is a must read for anyone wanting a clear understanding of how the Executive Branch can reap chaos when it builds an immense regulatory superstructure to interpret spare legislative text and regulate the U.S. economy. The law of unintended consequences is thus on full display.]
The Obama Administration's New Temporary Worker Rules
By Leon Sequeira
We’ve all heard lots of happy talk over the past few years from the Obama Administration about the need for comprehensive immigration reform. Regular readers of this blog are no doubt familiar with the President’s platitudes concerning his desire to do something about the undocumented and our broken guestworker programs. After three-plus years, however, many are left wondering where and when we’ll actually see some action. Lost in all the focus group-tested talking points and splashy videos on the White House website, touting a commitment to fixing our immigration system, is the fact that one of the President’s cabinet secretaries has been quite busy implementing immigration reform – a very troubling version of immigration reform.
The H-2B program is capped at 66,000 visas annually, but in the past couple of years fewer than 48,000 visas per year have been claimed. It should come as no surprise that with decreased business activity during the great recession, many employers need fewer employees to keep up with customer demand. But even with an average national unemployment rate of nearly 9% over the past year, there continue to be numerous temporary and seasonal jobs that U.S. workers simply do not want to perform. H-2B workers often fill these jobs and by doing so enable businesses across the country to flourish and employ scores of U.S. workers in other positions.
DOL’s culminated its first assault on the H-2B program in 2011 when the agency decided to dramatically accelerate implementation of the new wage regulations and require employers to immediately increase H-2B wage rates by, in some cases, more than 120%. DOL launched this broadside based on an illogical premise that the wages being paid by H-2B employers, which are set by DOL to ensure no adverse effect on U.S. workers, were somehow causing wage depression. Never mind that DOL produced no evidence of wage depression caused by H-2B workers. Nor did DOL explain how a mere 48,000 H-2B workers, spread across dozens of occupations from coast to coast could possibly result in wage depression in an economy that employs nearly 140 million people.
Perhaps most glaring was DOL’s failure to explain why, even if wage depression did exist, it would not be more likely to be the result of some 10 million undocumented in the workforce, rather than the 48,000 H-2B visa holders who were in the country legally working (at DOL-mandated wages) for only a few months at a time. Just a few years ago in another rulemaking, DOL reached that precise conclusion: to the extent any wage depression could be said to exist, it is likely the result of the undocumented who frequently toil in an underground economy.
In stark contrast to DOL’s current baseless assertions, economic studies have found that rather than depressing wages, H-2B employment is associated with rising wages, and perhaps just as importantly, job growth.
Facing the ruinous costs that would be imposed by DOL’s 2011 regulations, several H-2B employers and industry trade associations filed two separate lawsuits in September (one in Louisiana and one in Florida) against DOL in an effort to block the wage regulations from taking effect. It turned out that employers were not the only ones outraged by DOL’s actions. Before either court could rule on the employers’ requests for an injunction, Congress entered the fray. Democrats and Republicans, in a rare show of bipartisanship, joined together to stop the DOL regulations for the remainder of the fiscal year with an amendment to the agency’s 2012 funding bill. Barbara Mikulski of Maryland, one of the Senate’s most liberal members, led that successful effort. As a result of the political fallout, and in a major rebuke to his own Department of Labor, the President was left with no real option other than to sign the legislation into law.