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Court Rules for Labor in H-2B Visa Case: More American Workers, Higher Wages the Result

The Third District Court of Appeals handed American workers a victory with their ruling in the case of Louisiana Forestry Association v. Secretary, U.S. Department of Labor. The court found that the Department of Labor’s  wage regulation methodology pertaining to H-2b visas is valid, meaning the Department of Homeland Security must rely on the Labor Department’s decisions about the number of American workers available for a job.  

The system of H-2b visas, which are supposed to go to foreign workers if – and only if – there is a shortage of American workers in a given area or industry, has been rife with corruption and abuse.  In many industries like Information Technology, American workers are left out to dry while their jobs go to foreign workers for pennies on the dollar. But the Third District decision allows the Labor Department to set prevailing wages for the jobs in question and ensure there were no Americans to fill the jobs before H-2b visas were issued. It is a profound disincentive – employers can not now save money by hiring foreign workers.

The people who oppose a prevailing wage for H-2B visas are doing so in order to blatantly cut labor costs and exploit foreign labor at the expense of the American worker.  

Economic Policy Institute writer Ross Eisenbrey explains the situation:

I am not making this up. The Louisiana Forestry Association, the Crawfish Processors Alliance, and the American Hotel and Lodging Association actually argued that the required wages should not be set high enough to attract U.S. workers and that the Labor Department is not allowed to protect U.S. workers’ rights to a decent wage. Fortunately, the three-judge panel unanimously rejected this cynical argument and found that setting wages below the local prevailing wage does “adversely affect the wages and working conditions of similarly employed United States workers”:

We likewise reject Appellants’ argument that the DOL improperly established wage rates in order to attract U.S. workers—a factor Appellants claim the DOL was prohibited from considering in promulgating the 2011 Wage Rule. According to Appellants, in the NPRM and notice accompanying the final rule, the DOL “discussed the effect of higher wage rates on employers’ ability to attract U.S. workers,” a “factor that Congress and the [DHS] precluded from consideration…” We cannot agree. The INA and DHS regulatory provisions governing the DOL’s issuance of labor certifications require the DOL to consider, in issuing a temporary labor certification, whether H-2B alien workers’ employment “will adversely affect the wages and working conditions of similarly employed United States workers,” 8 C.F.R. 214.2(h)(6)(iii), a requirement that derives from the DHS’s charge from Congress to consider whether H-2B workers will have an “adverse effect” on U.S. workers.

Court action (read: unnecessary hold up) from big business lobbies is expected.

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