U.S. Court of Appeals for the Third Circuit

Case Status


Docket Number

12-4030; 11-cv-07687; 11-CV-01623


Case Updates

Third Circuit finds that final H-2B wage rule violates the Administrative Procedure Act

February 05, 2014

The Third Circuit upheld the ruling of the district court, finding that the DOL did not act “in excess of statutory jurisdiction, authority, or limitations, or short statutory right” and thus concluded that the 2011 Wage Rule did not violate the requirements of the INA. DHS rightfully allowed the DOL to issue a 2011 rule updating the minimum wage requirements for temporary nonagricultural employees working on H-2B visas.

U.S. Chamber files amicus brief

September 22, 2011

NCLC urged the court to enjoin the Department of Labor (DOL) from enforcing a new rule that would radically alter the formula for determining wages employers must pay temporary alien workers under the H-2B visa program. In its amicus brief, NCLC argues that DOL’s regulations are invalid because Congress did not authorize DOL to issue new wage methodologies that are retroactively applied, regardless of a worker’s experience, education, or other relevant factors. Furthermore, even if Congress had given the Secretary of Labor authority to promulgate the new wage methodology rule, there is clearly no statutory basis for DOL to apply its new methodology to workers employed under H-2B visas approved by DHS prior to the effective date of the new rule. Finally, the new methodology adopted by DOL is inconsistent with the Immigration and Nationality Act, which requires that a tiered system be used for calculating wages. By using the highest wage rate available as a single-level “prevailing rate,” the DOL would be imposing a one-size-fits-all wage structure that would cost jobs and harm businesses.

Amicus brief filed 9/22/11. On 9/22/11, DOL announced a 60-day postponement of the Final Rule’s effective date until November 30, 2011. Government motion in opposition to Chamber amicus brief filed 10/3/11. Case dismissed without prejudice 12/13/2011.

Case filed in United States District Court for Eastern District of Pennsylvania (Philadelphia) 12/15/2011 as 2:11-cv-07687-LDD. Goverment's motion for Summary Judgement Granted 8/20/2012. Appealed 10/19/2012.

Appealed to Third Circuit Court of Appeals as 12-4030.

DOL announced on 8/29/13 that it would indefinitely delay the effective date of the 2011 rule on H-2B visa program wages.

Decided 2/5/2014.

Case Documents