Louisiana Forestry Ass'n Inc. v. Secretary United States Department of Labor , 745 F.3d 653 ( 2014 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 12-4030
____________
LOUISIANA FORESTRY ASSOCIATION INC.;
OUTDOOR AMUSEMENT BUSINESS ASSOCIATION
INC.; CRAWFISH PROCESSORS ALLIANCE; FOREST
RESOURCES ASSOCIATION INC.; AMERICAN HOTEL
& LODGING ASSOCIATION; AMERICAN SUGAR
CANE LEAGUE OF USA INC.,
Appellants
v.
SECRETARY UNITED STATES DEPARTMENT OF
LABOR; JANE OATES, in her official capacity as United
States Assistant Secretary of Labor Employment and Training
Administration; UNITED STATES DEPARTMENT OF
LABOR; SECRETARY UNITED STATES DEPARTMENT
OF HOMELAND SECURITY; UNITED STATES
DEPARTMENT OF HOMELAND SECURITY
____________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2-11-cv-07687)
District Judge: Honorable Legrome D. Davis
___________
Argued May 31, 2013
Before: JORDAN and VANASKIE, Circuit Judges, and
RAKOFF,* District Judge.
(Filed: February 5, 2014)
R. Wayne Pierce, Esq. [ARGUED]
Pierce Law Firm
Suite 106
133 Defense Highway
Annapolis, MD 21401
Veronica W. Saltz, Esq.
Saltz Matkov
998 Old Eagle School Road
Suite 1206
Wayne, PA 19087
Leon R. Sequeira, Esq.
Seyfarth Shaw
975 F Street, N.W.
Washington, DC 20004
Counsel for Appellants
Geoffrey Forney, Esq. [ARGUED]
United States Department of Justice
*
Honorable Jed S. Rakoff, Senior Judge of the United
States District Court for the Southern District of New York,
sitting by designation.
2
Office of Immigration Litigation
Room 6223
450 5th Street, N.W.
Washington, DC 20001
Harry L. Sheinfeld, Esq.
United States Department of Labor
Office of the Solicitor
Room N-2101
200 Constitution Avenue, N.W.
Washington, DC 20210
Counsel for Appellees
Arthur N. Read, Esq.
Friends of Farmworkers, Inc.
42 South 15th Street
Suite 605
Philadelphia, PA 19102
Meredith B. Stewart, Esq.
Southern Poverty Law Center
1055 Saint Charles Avenue
Suite 505
New Orleans, LA 70130
Sarah M. Claassen, Esq.
Elizabeth D. Mauldin, Esq.
Centro de los Derechos del Migrante, Inc.
519 North Charles Street
Suite 260
Baltimore, MD 21201
Edward J. Tuddenham, Esq. [ARGUED]
3
228 West 137th Street
New York, NY 10030
Counsel for Intervenors
___________
OPINION OF THE COURT
___________
VANASKIE, Circuit Judge.
Appellants, a group of associations representing
employers in non-agricultural industries, claim that the
Department of Labor exceeded its authority by enacting a
regulation governing the calculation of the minimum wage a
U.S. employer must offer in order to recruit foreign workers
under the H-2B visa program. The District Court granted
summary judgment for the Department of Labor and its co-
defendants, the Secretary of Labor, the Department of
Homeland Security, and the Secretary of Homeland Security.
Having concluded that the regulation was validly
promulgated, we affirm the judgment of the District Court.
I.
On January 19, 2011, the Department of Labor (the
“DOL”) issued a new regulation governing the calculation of
the minimum wage a U.S. employer must offer in order to
recruit foreign workers as part of the H-2B visa program,
which permits U.S. employers to recruit foreign workers to
fill unskilled, non-agricultural positions that no qualified U.S.
worker will accept. See Wage Methodology for the
Temporary Non-agricultural Employment H-2B Program, 76
Fed. Reg. 3,452 (Jan. 19, 2011) (codified at 20 C.F.R. §
655.10) (the “2011 Wage Rule”). In September 2011,
4
Appellants—a group of associations representing employers
in non-agricultural industries which recruit H-2B workers and
stand to face higher labor costs as a result of the 2011 Wage
Rule1—challenged the validity of the 2011 Rule by initiating
an action against the Department of Labor, the Department of
Homeland Security, and the Secretaries of the respective
agencies. Also party to this appeal is a group of individuals
and organizations representing foreign and U.S. workers
impacted by the H-2B program (“the Intervenors”).2 The
Intervenors were plaintiffs in a prior suit that successfully
challenged the 2008 Wage Rule, the predecessor to the 2011
Wage Rule.
A. STATUTORY AND REGULATORY FRAMEWORK
1. The H-2B Visa Program
The Immigration and Nationality Act of 1952
established the modern framework for regulation of
immigration in the United States, including provisions for the
admission of permanent and temporary foreign workers. See
1
The five appellants are the Louisiana Forestry
Association, Inc.; Outdoor Amusement Business Association,
Inc.; Forest Resource Association, Inc.; American Hotel and
Lodging Association; and American Sugar Cane League of
U.S.A., Inc.
2
The eight intervenors are Jahamel Abuleche,
Romulo Abuleche, Comite Apoyo de los Trabajadores
Agricolas, Mark Cunanan, Salvador Martinez Barrera,
Pineros Campesinos Unidos del Noroeste, Jesus Vite Lopez,
and the Alliance of Forest Workers and Harvesters.
5
Immigration and Nationality Act of 1952 (“INA”), Pub. L.
No. 82-414, 66 Stat. 163 (codified as amended at 8 U.S.C. §§
1101 et seq.). One such provision was the H-2 visa program,
which governed the recruitment of unskilled foreign workers
for agricultural and non-agricultural jobs. Id. §
101(a)(15)(H)(ii). In 1986, Congress enacted the
Immigration Reform and Control Act of 1986 (“IRCA”),
which amended the INA by, among other things, bifurcating
the H-2 visa program into the H-2A and H-2B programs,
which govern the admission of agricultural and non-
agricultural workers, respectively. See Pub. L. No. 99-603, §
301(a), 100 Stat. 3359, 3411 (amending 8 U.S.C. §
1101(a)(15)(H)(ii)(a)-(b)). Named for the statutory section
under which it was created, the H-2B program permits U.S.
employers to recruit and hire temporary unskilled, non-
agricultural workers from abroad to fill positions that no
qualified U.S. worker will accept. See 8 U.S.C. §
1101(a)(15)(H)(ii)(b) (stating that U.S. employers may hire
an individual “having residence in a foreign country which he
has no intention of abandoning who is coming temporarily to
the United States to perform other temporary service or labor
if unemployed persons capable of performing such service or
labor cannot be found in this country . . . .”).
Congress initially charged the Attorney General of the
United States with implementing the INA, including the
provisions of the Act governing the H-2 visa program. See 8
U.S.C. § 1184(a)(1). In 2002, Congress abolished the
Immigration and Naturalization Service (“INS”), see 6 U.S.C.
§ 291, and transferred jurisdiction to enforce and administer
the nation’s immigration laws from the Attorney General to
the Secretary of Homeland Security. See 6 U.S.C. §§ 202,
557. Thus the authority to determine nonimmigrant visa
6
petitions now rests with the Bureau of Citizenship and
Immigration Services, an agency within the Department of
Homeland Security (“DHS”). See id. § 271(b).
The authority to administer the H-2B program is
vested in the DHS pursuant to section 1184(c) of the INA,
which directs that “[t]he question of any alien as a
nonimmigrant under 8 U.S.C. § 1005(a)(15)(H) shall be
determined by the [DHS] after consultation with appropriate
agencies of the Government, upon petition of the importing
employer.” 8 U.S.C. § 1184(c)(1).3 The DHS has by
regulation designated the DOL as the agency from which it
seeks “advice” in determining whether to grant H-2B visa
petitions. 8 C.F.R. § 214.2(h)(6)(iii) (2013). Specifically, the
DHS requires an employer seeking an H-2B visa to first
“apply for a temporary labor certification with the Secretary
of Labor” prior to filing the visa petition. Id. §
214.2(h)(6)(iii)(A). The regulation further provides that
“[t]he labor certification shall be advice to the director [of the
DHS] on [1] whether or not United States workers capable of
performing the temporary services or labor are available and
[2] whether or not the alien’s employment will adversely
affect the wages and working conditions of similarly
employed United States workers.” Id. In other words, the
DOL’s temporary labor certifications advise the DHS whether
two of the INA’s several statutory requirements for issuance
of an H-2B visa have been satisfied. See 8 U.S.C. §
1101(a)(15)(H)(ii)(b). The DHS has also by regulation
3
For the reasons explained above, all statutory
references to the “Attorney General” in this context are now
deemed to refer to the Secretary of Homeland Security. See 6
U.S.C. § 557.
7
endowed the DOL with the authority to create the procedures
necessary to fulfill its charge of issuing labor certifications:
The secretary of labor shall
separately establish for the
temporary labor program under
his or her jurisdiction, by
regulation at 20 CFR [§] 655,
procedures for administering th[e]
temporary labor program . . . and
shall determine the prevailing
wage applicable to an application
for temporary labor certification
for that temporary labor program
in accordance with the Secretary
of Labor’s regulation at 20 CFR
[§] 655.10.
8 C.F.R. § 214.2(h)(6)(iii)(D). The DHS has explained that it
“must seek advice from the [DOL] under the H-2B
classification because the statute requires a showing that
unemployed U.S. workers are not available to perform the
services before a petition can be approved. The [DOL] is the
appropriate agency of the Government to make such a labor
market finding.” Temporary Alien Workers Seeking
Classification Under the Immigration and Nationality Act, 55
Fed. Reg. 2,606, 2,617 (Jan. 26, 1990) (to be codified at 8
C.F.R. § 214.2(h)).
In sum, the process for obtaining an H-2B visa
proceeds in two general stages. First, an employer must
obtain a temporary labor certification from the DOL. See 8
C.F.R. § 214.2(h)(6)(iii)(A). This requires the employer to
apply to the DOL for a prevailing wage determination for the
8
area of intended employment. See 20 C.F.R. § 655.10. The
DOL then calculates the prevailing wage based upon
pertinent regulations, e.g., the 2008 or 2011 Wage Rules. Id.
The employer must also submit a work order with the state
workforce agency serving the geographical area of intended
employment and advertise the position at a wage equal to or
higher than the prevailing wage as determined by the DOL.
Id. Once these conditions have been satisfied, the DOL will
issue the labor certification, which serves as the DOL’s
verification that the employer has demonstrated that “there is
an insufficient number of U.S. workers who are qualified and
who will be available for the job opportunity for which
certification is sought and that the employment of the H-2B
workers will not adversely affect the benefits, wages, and
working conditions of similarly employed U.S. workers.” Id.
§ 655.50(b). Only after the DOL issues the labor certification
may an employer proceed to the second stage of the process:
filing an H-2B visa application with the DHS. See 8 C.F.R. §
214.2(h)(6)(iii)(C), (E). Although the DOL’s labor
certification is a prerequisite to obtaining an H-2B visa
petition, the authority to grant or deny an H-2B visa petition
ultimately rests with the DHS alone. See 8 U.S.C. § 1184(c).
2. The DOL’s Historical Role in the Administration of the H-
2B Program
The DOL has played a role in the administration of the
nation’s immigration laws in general, and the admission of
foreign workers in particular, since the Department’s
inception in 1913. At the time the DOL was established, the
Department “housed the Bureau of Immigration and the
Bureau of Naturalization,” and “[a]s early as 1917, the
Secretary of Labor and the Bureau of Immigration, then part
of the DOL, worked together to manage the importation of
9
laborers into the United States.” La. Forestry Ass’n v. Solis,
889 F. Supp. 2d 711, 716 n.2 (E.D. Pa. 2012) (citations
omitted). The Bureaus of Immigration and Naturalization
merged in 1933 to form the INS, which remained part of the
DOL until 1940 when it was transferred to the Department of
Justice. Id.
The INS has long required employers seeking to admit
workers under the H-2 program to first obtain “a certification
from the Secretary of Labor or his designated representative
stating that qualified persons in the United States are not
available and that the employment policies of the [DOL] have
been observed . . . .” Miscellaneous Amendments, 31 Fed.
Reg. 4,446 (Mar. 16, 1966) (codified at 8 C.F.R. § 214.2). In
1968, pursuant to these provisions, the DOL formally issued
regulations of its own governing the certification process for
the first time. See Certification of Temporary Foreign Labor
for Industries Other than Agriculture or Logging, 33 Fed.
Reg. 7,570–71 (May 22, 1968) (codified at 20 C.F.R. § 621).
In later years, the DOL amended the regulations governing
the certification process. See, e.g., Labor Certification
Process, 43 Fed. Reg. 10,306 (Mar. 10, 1978) (codified in
scattered sections of 20 C.F.R.).
The DOL continued its role in the administration of
both the H-2A and H-2B visa programs after Congress’s
passage of the IRCA bifurcated the H-2 program in 1986.
Although the IRCA was silent as to the DOL’s rulemaking
authority concerning the H-2B program,4 see IRCA § 301(a),
4
By contrast, Congress expressly granted DOL
limited rulemaking authority over the H-2A program. See
IRCA § 301(b) (“Section 214(c) (8 U.S.C. 1184(c)) is
amended by adding at the end the following: ‘For purposes of
10
the INS and its successor, the DHS, continued to authorize
the DOL’s involvement pursuant to their own agency
regulations. See, e.g., 8 C.F.R. § 214.2(h). During the first
two decades of the H-2B program’s existence, the DOL
issued, without notice and comment, a series of General
Administration Letters governing the determination of the
prevailing wage rate for the H-2B program. See, e.g., Interim
Prevailing Wage Policy for Nonagricultural Immigration
Programs, Gen Admin. Ltr., No. 4-95 (Dep’t of Labor May
18, 1995), available at
http://wdr.doleta.gov/directives/attach/GAL4-95_attach.pdf.
In sum, these letters set the prevailing wage at the rate
negotiated under a governing collective bargaining agreement
(“CBA”), or, if no CBA existed, the rate as determined under
the Davis-Bacon Act (“DBA”), 40 U.S.C. §§ 3141 et seq., or
McNamara-O’Hara Service Contract Act (“SCA”), 41 U.S.C.
§§ 6701 et seq. See id. at 1–2. In the event that no CBA,
DBA, or SCA wage rate was available, the prevailing wage
was determined by wage surveys. Id. at 2. In 1998, the DOL
first used the Occupational Employment Statistics (“OES”)
survey as the source for determining the prevailing wage
where no CBA, DBA, or SCA rate existed. See Prevailing
Wage Policy for Nonagricultural Immigration Programs, Gen.
Admin. Ltr., No. 2-98 (Dep’t of Labor Oct. 31, 1997),
available at http://wdr.doleta.gov/directives/attach/GAL2-
98_attach.pdf. During this time, the DOL also began to
consider “skill level” in determining the prevailing wage,
classifying H-2B employment opportunities as either “entry
this subsection with respect to nonimmigrants described in
section 101(a)(15)(H)(ii)(a), the term ‘appropriate agencies of
Government’ means the Department of Labor and includes
the Department of Agriculture.’”).
11
level” or “experienced level” and considering the skill level
of an occupation as one of several factors affecting the
prevailing wage rate for that job. See Gen. Admin. Ltr. 4-95,
at 5–6.
The DOL abandoned the two-tier approach in 2005
and instead adopted the wage calculation methodology used
in administering the H-1B program, which governs the
temporary admission of aliens in skilled, specialty
occupations. See 8 U.S.C. § 1101(a)(15)(H)(i)(b). Under the
H-1B program’s wage calculation regime, the prevailing
wage is determined by a four-tier system based on the skill
level required for the occupation.5 See id. § 1182(p)(4). The
5
The H-1B program’s four-tier system for
determining the prevailing wage is set forth in 8 U.S.C. §
1182(p)(4), which provides:
Where the Secretary of Labor
uses, or makes available to
employers, a governmental survey
to determine the prevailing wage,
such survey shall provide at least
4 levels of wages commensurate
with experience, education, and
the level of supervision. Where
an existing government survey
has only 2 levels, 2 intermediate
levels may be created by dividing
by 3, the difference between the 2
levels offered, adding the quotient
thus obtained to the first level and
12
DOL first applied the four-tier methodology to the H-2B visa
program in a 2005 letter, which, like its predecessors, was
issued without notice and comment. See Mem. To SWA
Adm’rs from Emily Stover DeRocco, Asst. Sec’y for Emp’t
& Training, Revised Prevailing Wage Determination
Guidance (May 17, 2005). “That letter also announced that in
the absence of a CBA, the DOL would use the OES program
as the main source of data for establishing prevailing wages.”
Id.
In 2008, for the first time since the 1960s, the DOL
promulgated a regulation governing the labor certification
process through notice and comment rulemaking. See Labor
Certification Process and Enforcement for Temporary
Employment in Occupations Other Than Agriculture (H-2B
Workers), 73 Fed. Reg. 78,020 (Dec. 19, 2008) (codified at
20 C.F.R. §§655–56) (the “2008 Wage Rule”). The 2008
Wage Rule codified several aspects of the DOL’s guidance in
the 2005 letter discussed above. For example, the 2008 Rule
provided that the four-tier methodology borrowed from the
H-1B program should be used to calculate the prevailing
wage. See id. at 78,020, 78,029, 78,056. The 2008 Rule
further required that the prevailing wage be determined by the
rate specified by the governing CBA, or, in the absence of a
CBA, “the arithmetic mean . . . of the wages of workers
similarly employed at the skill level in the area of intended
employment[,]” as calculated using OES data. Id. at 78,056.
The Rule alternatively permitted use of employer surveys to
establish the prevailing wage, provided certain conditions
were satisfied. See id.
subtracting that quotient from the
second level.
13
3. Subsequent Litigation and Rulemaking
In 2009, a group of individuals and organizations
representing foreign and U.S. workers impacted by the H-2B
program6 initiated an action in the District Court for the
Eastern District of Pennsylvania challenging the validity of
the 2008 Wage Rule. See Comite de Apoyo a los
Trabajadores Agricolas v. Solis, No. 09-240, 2010 WL
3431761 (E.D. Pa. Aug. 30, 2010) (“CATA I” or “the CATA
litigation”).7 The CATA plaintiffs alleged that several
provisions of the 2008 Wage Rule, including the provision
governing the calculation of the prevailing wage rate, violated
the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701
et seq. The District Court agreed, holding that the DOL
violated the APA in promulgating the 2008 Wage Rule by,
among other things, importing into the H-2B program the H-
1B program’s four-tier wage calculation methodology, and by
relying on OES data, rather than DBA or SCA data, to set the
prevailing wage, without subjecting either provision to notice
and comment.8 See id. at *4–7, 19, 25. Citing concerns that
6
As discussed in part I supra, these individuals are
the Intervenors in this appeal.
7
The CATA litigation, like this case, was originally
assigned to Judge Pollak. Both cases were reassigned to
Judge Davis following Judge Pollak’s death in May 2012.
8
The District Court explained that although “[a]s a
general matter, of course, DOL’s [2008 Wage Rule] w[as]
subjected to notice and comment,” the DOL ‘expressly
refused to consider comments concerning the choice of
appropriate data sets’ and the four-tier methodology.” CATA
14
vacating the 2008 Wage Rule would result in a regulatory gap
and leave the DOL with no method by which to calculate the
prevailing wage, the District Court ordered the DOL to
promulgate a replacement rule within 120 days, leaving intact
the four-tier method until a new regulation was issued. Id. at
25.
In response to the District Court’s decision, the DOL
issued a notice of proposed rulemaking (“NPRM”) setting
forth a new method for calculating the prevailing wage. See
Wage Methodology for the Temporary Non-Agricultural
Employment H-2B Program, 75 Fed. Reg. 61,578 (proposed
Oct. 5, 2010) (to be codified at 20 C.F.R. § 655.10) (the
“Proposed 2011 Wage Rule”). The Proposed 2011 Wage
Rule eliminated the four-tier skill-level methodology, and, as
the NPRM explained, reflected the DOL’s concern that the
four-tier regime did not produce “the appropriate wage
necessary to ensure U.S. workers are not adversely affected
by the employment of H-2B workers.” Id. at 61,579. The
Proposed Rule defined the prevailing wage as “the highest of
the following: Wages established under an agreed-upon
[CBA] . . .; a wage rate established under the DBA or SCA
for that occupation in the area of intended employment; and
the arithmetic mean wage rate established by the OES for that
occupation in the area of intended employment.” Id. The
DOL explained that the Proposed Rule would “best achieve
the Department’s policy objectives of ensuring that wages of
U.S. workers are more adequately protected and, thus, that
I, 2010 WL 3431761, at *19. The District Court thus
concluded that the provisions were “improperly promulgated
without acceptance and consideration of comments as
required by the APA.” Id.
15
employers are only permitted to bring H-2B workers into the
country where the wages and working conditions of U.S.
workers will not be adversely affected.” Id. at 61,581.
On January 19, 2011, the DOL published a final
version of the 2011 Wage Rule, which is the subject of this
appeal. See Wage Methodology for the Temporary Non-
agricultural Employment H-2B Program, 76 Fed. Reg. 3,452
(Jan. 19, 2011) (codified at 20 C.F.R. § 655.10) (the “2011
Wage Rule”). In its final form, the 2011 Wage Rule
establishes a wage calculation regime wherein the prevailing
wage is the highest of the applicable CBA; the rate
established under the DBA or SCA; or the OES mean. Id. at
3,453, 3,484. The 2011 Wage Rule eliminates the four-tier
methodology from the wage calculation regime “in favor of
the mean OES wage for each occupational category,” and
likewise bars the use of employer-submitted surveys if the
prevailing wage can be determined based on OES data or the
rates established under the DBA or SCA. Id. The notice of
the final rule provided that the 2011 Wage Rule would take
effect after a one-year delay, on January 1, 2012. Id. at 3,452.
The DOL relied upon both the INA and DHS
regulations as the basis for its authority to promulgate the
2011 Wage Rule. Specifically, the DOL pointed to 8 U.S.C.
§ 1184(c)(1) and 8 C.F.R. § 214.2(h)(6), explaining:
Section 214(c)(1) of the INA
requires DHS to consult with
appropriate agencies before
approving an H-2B visa petition.
8 U.S.C. [§] 1184(c)(1). That
consultation occurs according to a
. . . regulatory requirement that an
16
employer first obtain a temporary
certification from the Secretary of
Labor (the Secretary) establishing
that U.S workers capable of
performing the services or labor
are not available, and that the
employment of the foreign
worker(s) will not adversely affect
the wages and working conditions
of similarly employed U.S.
workers. 8 C.F.R. [§]
214.2(h)(6).
The Secretary’s responsibility for
the H-2B program is carried out
by two agencies with the
Department. Applications for
labor certification are processed
by the Office of Foreign Labor
Certification (OFLC) in the
Employment and Training
Administration (ETA), the agency
to which the Secretary has
delegated those responsibilities
described in . . . the H-2B
regulations. Enforcement of the
attestations and assurances made
by employers in H-2B
applications for labor certification
is conducted by the Wage and
Hour Division (WHD) under
enforcement authority delegated
17
to it by DHS. 8 U.S.C. [§]
1184(c)(14)(B).
Id. at 3,452. The DOL further noted that according to its
estimates, “the change in the method of determining wages
will result in a $4.83 increase in the weighted average hourly
wage for H-2B workers and similarly employed U.S.
workers[,]” and a total annual transfer cost of $847.4 million.9
Id. at 3,469, 3,471.
Four months later, the DOL published a notice in the
Federal Register informing the public that H-2B employers
would be expected to comply with the new prevailing wage
rate when it took effect on January 1, 2012. See Application
of the Prevailing Wage Methodology in the H-2B Program,
76 Fed. Reg. 21,036, 21,036–37 (Apr. 14, 2011). At that
time, the DOL also published a new appendix to the standard
H-2B visa application form, which all employers are required
to sign to obtain a labor certification from the DOL. See id.;
see also J.A. 185. The appendix added a requirement that a
signatory employer certify that “[t]he offered wage equals or
exceeds the highest of the most recent prevailing wage that is
or will be issued by the [DOL] to the employer for the time
period the work is performed.” J.A. 185.
Although the 2011 Wage Rule was set to take effect on
January 1, 2012, the CATA plaintiffs-Intervenors successfully
challenged and accelerated its effective date. See Comite de
Apoyo a los Trabajadores Agricolas v. Solis, 2011 WL
9
The total annual transfer cost is defined as the total
additional wages employers participating in the H-2B
program would be required to pay foreign workers recruited
under the program. See 76 Fed. Reg. 3,471.
18
2414555, at *3-4 (E.D. Pa. June 16, 2011) (“CATA II”). On
June 16, 2011, the District Court vacated the effective date of
January 1, 2012, and ordered the DOL to issue a new
effective date through notice and comment rulemaking. Id. at
*5. After providing the public an opportunity to comment on
the new date, the DOL issued a final rule accelerating the
2011 Rule’s effective date to September 30, 2011. See Wage
Methodology for the Temporary Non-Agricultural
Employment H-2B Program; Amendment of Effective Date,
76 Fed. Reg. 45,667, 45,673 (Aug. 1, 2011).
The DOL subsequently postponed implementation of
the 2011 Wage Rule, however, in response to provisions in
riders to appropriations bills in which Congress expressly
defunded implementation of the 2011 Rule. See, e.g.,
Consolidated and Further Continuing Appropriations Act,
2012, Pub. L. 112-55, 125 Stat. 552, Div. B, Title V § 546
(2011); Consolidated Appropriations Act, 2012, Pub. L. 112-
74, 125 Stat. 786, Div. F, Title I § 110 (2011); Continuing
Appropriations Resolution, 2013, H.J. Res. 117, 112th Cong.,
126 Stat. 1313 (2012); Consolidated and Further Continuing
Appropriations Act, 2013, Pub. L. 113-6, 127 Stat. 198, Div.
F, Title 5 (2013). In the interim, the DOL continued to use
the 2008 Wage Rule to calculate the prevailing wage for H-
2B visa applications. Although the DOL readily
acknowledged that the 2008 Rule was invalid, it was unable
to enforce the 2011 Wage Rule because, as discussed above,
Congress continued to renew appropriations bans defunding
the Rule’s implementation. Thus, in September 2012, the
CATA plaintiffs-Intervenors moved to vacate the 2008 Wage
Rule, and for preliminary and permanent injunctions barring
its use.
19
On March 21, 2013, the District Court granted the
requested relief, vacating the provisions of the 2008 Wage
Rule found to be invalid in its order of August 30, 2010. See
Comite de Apoyo a los Trabajadores Agricolas v. Solis, 933
F. Supp. 2d 700 (“CATA III”). The District Court observed
that the DOL admitted that the 2008 Wage Rule “is
procedurally and substantively invalid,” and explained why
vacatur, which it had deemed inappropriate at the time it
invalidated provisions of the 2008 Wage Rule in August of
2010, was now the proper remedy:
[A]fter the DOL acknowledged
the 2008 Wage Rule’s defects and
promulgated an unsuccessful
replacement rule, the DOL
stopped entirely in its tracks. The
DOL now expresses that it has no
intention of taking further action
to bring the DOL’s H-2B labor
certification into statutory and
regulatory compliance and instead
urges that we leave undisturbed a
rule that this Court found
procedurally invalid thirty months
ago and that has since been
declared substantively invalid by
the very agency that now urges us
to leave the Rule in place.
Id. at 713–14. The District Court thus granted a permanent
injunction, and ordered that the 2008 Wage Rule be vacated
and the DOL “come into compliance within thirty (30) days.”
Id. at 716.
20
In response to the District Court’s order vacating the
2008 Wage Rule, the DOL and the DHS issued a final interim
rule on April 24, 2013. See Wage Methodology for the
Temporary Non-Agricultural Employment H-2B Program,
Part 2, 78 Fed. Reg. 24,047, 24,047–48 (Apr. 24, 2013)
(codified at 8 C.F.R. §§ 214.2, 655.10) (the “2013 Interim
Rule”). Like the 2011 Wage Rule, the 2013 Interim Rule
eliminates the four-tier wage calculation methodology and
provides that the prevailing wage will be “the arithmetic
mean wage established in the OES survey, without the four
levels.” Id. at 24,053. And, like the 2008 and 2011 Wage
Rules, the Interim Rule permits the prevailing wage to be
determined by the rate established in a governing CBA. Id.
In contrast to the 2011 Wage Rule, however, the Interim Rule
permits, but does not require, “an employer to use a
prevailing wage determination based on the DBA or SCA.”
Id. at 24,054. The Interim Rule leaves intact the 2008 Wage
Rule’s provision allowing use of employer-provided surveys
to calculate the prevailing wage, replacing the 2011 Wage
Rule’s more stringent provision restricting use of employer
surveys to only very “limited circumstances.” Id. at 24,054–
55. The Departments called for comments from the public
regarding each of these provisions. Id. at 24,053–55.
As the basis for their respective authority to issue the
2013 Interim Rule, the Departments cited the INA and DHS
regulations, explaining:
Section 214(c)(1) requires DHS to
consult with “appropriate
agencies of the Government”
before adjudicating an H-2B
petition. DHS has determined
that, under this statutory
21
provision, it must consult with
DOL as part of the process of
adjudicating H-2B petitions
because DOL is the agency best
situated to provide advice
regarding whether “unemployed
persons capable of performing
such service or labor cannot be
found in this country.” 8 U.S.C.
[§] 1101(a)(15)(H)(ii)(b). DHS,
in conjunction with DOL, has
determined that the best way to
provide this consultation is by
requiring the employer . . . prior
to filing an H-2B petition, to first
apply for a temporary labor
certification from the Secretary of
Labor. 8 CFR [§]
214.2(h)(6)(iii)(A).
Id. at 24,048. The Departments emphasized that the DHS and
its predecessor, the INS, have consulted with the DOL in
administering the H-2B program since 1968, and that the
Rule “contains certain revisions to DHS’s H-2B rule to clarify
that DHS is the Executive Branch agency charged with
making determinations regarding eligibility for H-2B
classification, after consulting with DOL for its advice about
matters with which DOL has expertise, particularly, in this
case, questions about the methodology for setting the
prevailing wage in the H-2B program.” Id. at 24,048–49.
The Departments further explained that the 2013 Interim Rule
was issued “in response to the [District] [C]ourt’s order in
[CATA III] . . . and to ensure that there is no question that the
22
rule is in effect nationwide in light of other outstanding
litigation.” Id. at 24,048.
The 2013 Interim Rule was made effective
immediately, pursuant to the “good cause” exception to the
APA’s requirement that agency rules be subject to a notice
and comment period and take effect no sooner than 30 days
after the final rule is published. Id. at 24,055–56 (citing 5
U.S.C. § 553(b)(B), (d)(3)). According to the supplementary
information to the Interim Final Rule, as well as the DOL’s
briefing in this case, the Interim Rule is effective only “on a
temporary basis,” until the 2011 Wage Rule takes effect. Id.
at 24,056; Appellants’ Supp. Br. at 1-5.
On August 30, 2013, the DOL issued a rule in which it
indefinitely delayed the effective date of the 2011 Wage Rule
“to comply with recurrent legislation that prohibits [the
Department] from using any funds to implement it, and to
permit time for consideration of public comments sought in
conjunction with [the 2013 Interim Final Rule] published
April 24, 2013, 78 [Fed. Reg.] 24[,]047.” See Wage
Methodology for the Temporary Non-Agricultural
Employment H-2B Program; Delay of Effective Date, 78 Fed.
Reg. 53,643 (Aug. 30, 2013) (the “Delay Rule”). The DOL
noted, however, that:
If Congress no longer prohibits
implementation of the 2011 Wage
Rule, the Department will publish
a document in the Federal
Register within 45 days of that
event apprising the public of the
status of 20 CFR [§] 655.10 and
23
the effective date of the 2011
Wage Rule.
Id. at 53,645. Under the Department of Labor Appropriations
Act, 2014, effective January 17, 2014, Congress lifted the
appropriations ban on the 2011 Wage Rule. See Pub. L. 113-
76, Div. H, Title I (2014).10
B. FACTUAL AND PROCEDURAL BACKGROUND
10
The parties jointly maintain that this appeal remains
ripe despite the DOL’s stay of the 2011 Wage Rule. We
agree. This case involves a facial challenge to an
administrative rule, now fully funded, that the parties expect
to be implemented swiftly and with a direct and foreseeable
impact. Because no further factual development is necessary
and the remaining issues are purely legal challenges to a
“final agency action,” 5 U.S.C. § 704, the matter is thus “fit[]
. . . for judicial decision,” Abbott Labs. v. Gardner, 387 U.S.
136, 149 (1967), abrogated by on other grounds by Califano
v. Sanders, 430 U.S. 99 (1977). And because we discern no
institutional interest in delay, and none is otherwise offered,
we need not consider hardship to the parties. See Owner-
Operator Independent Drivers Ass’n v. Fed. Motor Carrier
Safety Admin., 656 F.3d 580, 586 (citing Sabre, Inc. v. Dep't
of Transp., 429 F.3d 1113, 1119 (D.C. Cir. 2005)).
Moreover, certain parties to this appeal have expressed in
concrete terms that delay in our assessment of the Rule’s
validity constitutes a potentially grievous hardship for
purposes of business planning and places them in a “very real
dilemma.” Abbott Labs, 387 U.S. at 153.
24
On September 7, 2011, Appellants initiated the present
action in the United States District Court for the Western
District of Louisiana challenging the validity of the 2011
Wage Rule on the grounds that it was promulgated in
violation of both the APA and the Regulatory Flexibility Act
(“RFA”), 5 U.S.C. §§ 601 et seq.11 Appellants requested both
declaratory and injunctive relief. The CATA plaintiffs-
Intervenors subsequently filed an unopposed motion to
intervene based on principles of comity. On December 13,
2011, the District Court “issued an order transferring venue
and denying, without prejudice, the [Appellants’] motion for
a preliminary injunction.” See La. Forestry Ass’n v. Solis,
814 F. Supp. 2d 655, 665 (W.D. La. 2011).
Upon transfer to the District Court for the Eastern
District of Pennsylvania, the parties filed cross-motions for
summary judgment. Appellants presented two primary
challenges to the 2011 Rule: first, that the DOL lacks
authority to promulgate legislative rules concerning the H-2B
program, and second, that even if the DOL has such
rulemaking authority, the DOL’s violation of certain
procedural requirements of the APA and RFA invalidates the
Rule entirely.
On August 20, 2012, the District Court issued a
decision and order granting the defendants’ motion for
summary judgment.12 See La. Forestry Ass’n v. Solis, 889 F.
11
Appellants also challenged the DOL’s acceleration
of the effective date of the 2011 Wage Rule from January 1,
2012 to September 30, 2011. The DOL’s later postponement
of the effective date mooted those claims.
12
The District Court heard oral argument on June 28,
2012, at which time the parties expressed doubt that the
25
Supp. 2d 711 (E.D. Pa. 2012). The District Court first
rejected Appellants’ arguments regarding the DOL’s
rulemaking authority, beginning with Appellants’ contention
that the DHS unlawfully conditioned “its own granting of H-
2B visas on the receipt of labor certifications from the DOL”
pursuant to 8 C.F.R. § 214.2(h)(6)(iii)(A). Id. at 722.
Instead, the District Court determined that:
It was eminently reasonable for
the DHS to do so because the
DOL is uniquely qualified to
provide advice about the potential
effects of H-2B workers’
employment on United States
workers, and because the DOL
has been charged for decades with
the responsibility of issuing labor
certifications to employers
seeking to hire temporary foreign
workers.
Id. at 724. The District Court thus found that the DHS
decision to adopt the DOL labor certification was entitled to
deference under Chevron, U.S.A., Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837 (1984). Id. at 723–25.
The District Court also noted that it “would have come to the
same conclusion even under a less deferential, Skidmore-type
standard of review.” Id. at 725 (citing Skidmore v. Swift &
Co., 323 U.S. 134 (1944)).
dispute over the 2011 Rule’s validity would be resolved by
congressional action, i.e., funding for implementation of the
Rule.
26
The District Court then dismissed the argument that
the DHS “improperly ‘offloaded’ some of its jurisdiction to
the DOL by making the DOL a ‘co-determiner’ of H-2B visa
petitions.” Id. at 725. The District Court explained:
DHS takes the DOL’s advice on
the labor certification question
because DHS understands that the
DOL has unrivaled expertise in
this particular field. But it is still
just a “consultation,” which the
INA expressly permits.
This conclusion is bolstered by
review of other cases in which an
administrative agency has
conditioned the exercise of its
own authority on the decision of
another entity.
Id. at 725–26 (citing U.S. Telecom Ass’n v. FCC, 359 F.3d
554, 567 (D.C. Cir. 2004)). The District Court likewise
rejected the contention that “in enacting the INA, Congress
unlawfully delegated its legislative power to the DOL by
failing to lay down an ‘intelligible principle’ that
‘meaningfully constrains’ DOL’s discretion.” Id. at 726–27.
Citing the history of the H-2B program, the statutory text of
the INA, and the policy goals at issue, the District Court
concluded that the INA, as amended by IRCA, confers
27
implied rulemaking authority on the DOL,13 and the DOL had
not exceeded the scope of that authority in issuing the 2011
Wage Rule. Id. at 728–30. Instead, “[t]he agencies’
interpretation of 8 C.F.R. § 214.2(h)(6)(iii) [as conferring
rulemaking authority on the DOL] is not plainly erroneous or
inconsistent with the regulation” and “comports with the
judicial preference for filling the interstices of the law
through quasi-legislative enactment of rules of general
applicability.” Id. at 730. Lastly, the District Court rejected
Appellants’ claims that the DOL violated the APA and RFA
when it promulgated the 2011 Wage Rule. See id. at 732–38.
II.
The District Court had jurisdiction pursuant to 28
U.S.C. § 1331 and 5 U.S.C. §§ 611(a) and 704, and we have
appellate jurisdiction under 28 U.S.C. § 1291. We review a
district court’s grant of summary judgment in a case brought
under the APA de novo, “apply[ing] the applicable standard
of review to the underlying agency decision.” Cyberworld
Enter. Techs., Inc. v. Napolitano, 602 F.3d 189, 195–96 (3d
Cir. 2010). Under the APA, we must set aside an agency
action that is “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law”; “in excess of statutory
jurisdiction, authority, or limitations, or short of statutory
right”; or “without observance of procedure required by law.”
5 U.S.C. § 706(2)(A), (C)–(D). Appellants challenge both the
DOL’s general rulemaking authority in the context of the H-
2B program, as well as its compliance with the requirements
13
The DOL conceded that it lacks express statutory
authority to engage in such rulemaking. See La. Forestry
Ass’n, 889 F. Supp. 2d at 728.
28
of the APA and the INA in promulgating the 2011 Wage
Rule.
A.
We turn first to Appellants’ claim that there exists no
legal basis—statutory or otherwise—upon which the DOL
may predicate its rulemaking concerning the H-2B program.14
Appellants contend that the DHS unlawfully subdelegated its
authority over the H-2B program to the DOL, and thus the
District Court erred when it rejected this argument and found
that the DHS lawfully conditioned its granting of H-2B visa
petitions on labor certifications from the DOL. According to
the Departments, on the other hand, the DOL does not seek to
justify its rulemaking in the H-2B context pursuant to a
delegation theory. Rather, the Departments assert that the
DOL has authority to promulgate rules concerning the H-2B
program because the DHS lawfully conditioned its granting
of H-2B petitions on obtaining a labor certification from the
DOL and permissibly endowed the DOL limited rulemaking
14
The Departments contend that Appellants never
argued that the DOL lacks statutory authority to issue rules
concerning the H-2B program during the administrative
rulemaking proceedings, and thus the argument should be
deemed waived for failure to exhaust administrative
remedies. We disagree. Even if Appellants failed to
challenge the DOL’s rulemaking authority on this ground
during the administrative rulemaking process, the claim is not
waived. “[E]xhaustion of administrative remedies is not
required when the issue involves only statutory construction,
because there is no need for the administrative agency to
develop a factual record or apply its expertise.” Bradshaw v.
Carlson, 682 F.3d 1050, 1052 (3d Cir. 1981).
29
authority to carry out its charge of issuing certifications. For
the reasons set forth below, we find that the DOL has
authority to promulgate rules concerning the temporary labor
certification process in the context of the H-2B program, and
that the 2011 Wage Rule was validly promulgated pursuant to
that authority. This authority derives from regulation
214.2(h)(6)(iii), which was promulgated pursuant to the
DHS’s authority under sections 1101(a)(15)(H)(ii)(b) and
1184(c) of the INA to administer the nation’s immigration
laws, generally, and the H-2B program, specifically. See 6
U.S.C. §§ 202, 271(b); 8 U.S.C. § 1184(c).
1.
As an initial matter, we must resolve the parties’
dispute as to whether the DHS’s interpretation of the INA as
permitting it to require H-2B petitioners to first obtain a
temporary labor certification from the DOL is entitled to
Chevron deference. Appellants argue that the DHS’s
interpretation of the governing statutory provisions is not
entitled to deference under Chevron because the statutes—
and particularly section 1184(c)—do not contain ambiguous
language. The Departments and Intervenors, on the other
hand, contend that Chevron deference is warranted because
“Congress left a gap for DHS to fill when it charged DHS to
consult with appropriate agencies,” and the “DHS’
interpretation of the gap as requiring a labor certification from
the DOL is reasonable.” Intervenors’ Br. at 37.
“[A]dministrative implementation of a particular
statutory provision qualifies for Chevron deference when it
appears that Congress delegated authority to the agency
generally to make rules carrying the force of law, and that the
agency interpretation claiming deference was promulgated in
30
the exercise of that authority.” United States v. Mead Corp.,
533 U.S. 218, 226-27 (2001). Here, Congress endowed the
DHS with general authority to administer the nation’s
immigration laws. See 6 U.S.C. § 202. With regard to the H-
2B program, Congress has specifically delegated to DHS the
authority to “prescribe” by regulation the conditions under
which aliens may be admitted to the United States, and the
authority to “determine[]” H-2B petitions “after consultation
with appropriate agencies of the Government.” 8 U.S.C. §
1184(a), (c)(1). Acting pursuant to this statutory authority,
DHS has issued regulations of its own requiring employers
seeking to admit workers under the H-2B program to first
“apply for a temporary labor certification with the Secretary
of Labor,” which certification “shall be advice to the director
[of DHS] on whether or not United States workers capable of
performing the temporary services or labor are available and
whether or not the alien’s 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). Thus,
because “there is adequate indication of congressional intent
in the statute to demonstrate substantial delegation of
authority to the [DHS],” Robert Wood Johnson Univ. Hosp. v.
Thompson, 297 F.3d 273, 281 (3d Cir. 2002), and because the
DHS promulgated regulation 214.2 pursuant to that authority,
“Chevron and its progeny provide the applicable standard of
review.” Pub. Citizen, Inc. v. FAA, 988 F.2d 186, 191 (D.C.
Cir. 1993).
2.
“Chevron established a familiar two-step procedure for
evaluating whether an agency's interpretation of a statute is
lawful.” Nat’l Cable & Telecomms. Ass’n v. Brand X Internet
Servs., 545 U.S. 967, 986 (2005). The Supreme Court has
31
instructed that “[a]t the first step, we ask whether the statute’s
plain terms ‘directly addres[s] the precise question at issue.’”
Id. (quoting Chevron, 467 U.S. at 843). “If the statute is
ambiguous on the point, we defer at step two to the agency's
interpretation so long as the construction is ‘a reasonable
policy choice for the agency to make.’” Id. (quoting
Chevron, 467 U.S. at 845).
a.
At the first step, the Supreme Court has instructed that
we must consider not only the plain language of the statute,
but also, through “traditional tools of statutory construction,”
whether “Congress had an intention on the precise question at
issue.” Chevron, 467 U.S. at 843 n.9. Section 1184(c) is
silent as to the identity of the agencies with which the DHS
may consult in fulfilling its charge to “determine[] . . . [t]he
question of importing any alien as a nonimmigrant under [the
H-2B program].” 8 U.S.C. § 1184(c)(1). The statute likewise
does not “directly addres[s] the precise question” of what
constitutes permissible consultation. Nat’l Cable, 545 U.S.
at 986 (quoting Chevron, 467 U.S. at 843); see 8 U.S.C. §
1101 (prescribing definitions for the INA and providing no
definition for “consultation”). We observe that, unlike in the
context of the H-2A program, Congress did not specify the
agency or agencies with which the DHS should consult in
determining H-2B petitions. Compare 8 U.S.C. §
1101(a)(15)(H)(ii)(a), with id. § 1101(a)(15)(H)(ii)(b); see
also id. § 1184(c)(1). “[T]hat silence suggests . . . that the
[DHS] has the discretion to fill the consequent statutory gap.”
Nat’l Cable, 546 U.S. at 997. We cannot glean any more
understanding of Congress’ intention with respect to either
question from the plain language of the statute read through
“traditional tools of statutory construction.” Chevron, 467
32
U.S. at 843 n.9; see United States v. Geiser, 527 F.3d 288,
293 (3d Cir. 2008) (“[W]e no longer find it necessary to
consider legislative history at Chevron step one.”).
Accordingly, we conclude that the first step of the Chevron
inquiry is satisfied.
b.
We next consider whether the DHS’s construction of
the INA is permissible, that is, whether it was “‘a reasonable
policy choice for the agency to make.’” Nat’l Cable, 545
U.S. at 986 (quoting Chevron, 467 U.S. at 845). We find that
it is.
We begin with Appellants’ contention that the DHS
impermissibly interpreted the INA as allowing it to
subdelegate its authority to administer the H-2B program to
the DOL. The precise question presented by this case is one
of subdelegation, i.e., the transfer of authority from an agency
endowed with authority pursuant to congressional enactment
to entities within or outside of the agency itself. As a general
rule, “[w]hen a statute delegates authority to a federal officer
or agency, subdelegation to a subordinate federal officer or
agency is presumptively permissible absent affirmative
evidence of a contrary congressional intent.” U.S. Telecom
Ass’n, 359 F.3d at 565. Our sister Courts of Appeals have
recognized, however, “an important distinction between
subdelegation to a subordinate and subdelegation to an
outside party,” finding that “subdelegations to outside parties
are assumed to be improper absent an affirmative showing of
congressional authorization.”15 Id.; see also Fund for
15
Although the case law strongly suggests that the
presumption of authority to subdelegate is inapplicable where
33
Animals v. Kempthorne, 538 F.3d 124, 132 (2d Cir. 2008)
(“We agree with the D.C. Circuit that, absent statutory
authorization, such delegation is impermissible.”).16 Under
this line of reasoning, then, a subdelegation of authority from
the DHS to the DOL—an outside, non-subordinate agency—
would be impermissible absent a clear statement from
Congress authorizing such.
But the prohibition against subdelegation to an outside
entity in the absence of express congressional authorization is
applicable only if an agency actually delegated its power in
the first place. Thus, as a threshold matter, we must
determine whether any delegation occurred at all. “An
agency delegates its authority when it shifts to another party
almost the entire determination of whether a specific statutory
requirement . . . has been satisfied, or where the agency
abdicates its final reviewing authority.” Kempthorne, 538
F.3d at 133 (citations and internal quotation marks omitted).
an agency has attempted to delegate to a non-subordinate or
outside entity, we need not decide this question today
because, as discussed infra, the DHS’s actions were not, by
definition, a delegation of authority.
16
As the D.C. Circuit has succinctly explained,
“subdelegation to outside entities aggravates the risk of policy
drift inherent in any principal-agent relationship” by blurring
“lines of accountability”; “undermining an important
democratic check on government decision-making”; and
“increas[ing] the risk that these parties will not share the
agency’s national vision and perspective.” U.S. Telecom
Ass’n, 359 F.3d at 565–66 (internal quotation marks omitted).
34
In the case at bar, the authority delegated by Congress to the
DHS under the INA “bears little resemblance to the far
narrower band of discretion afforded to” the DOL under
regulation 214.2. Id. The INA provides for the admission of
aliens who have no intention of abandoning their foreign
residence and intend to enter the United States to perform
temporary work “if unemployed persons capable of
performing such service or labor cannot be found in this
country . . . .” 8 U.S.C. § 1101(a)(15(H)(ii)(b). Congress has
charged the DHS with administering the INA and
“determin[ing] . . . [t]he question of importing any alien as a
nonimmigrant under [the H2-B program] . . . after
consultation with appropriate agencies of the Government,
upon petition of the importing employer.” Id. § 1184(a),
(c)(1). Regulation 214.2, by contrast, requires employers
seeking to admit workers under the H-2B program to first
“apply for a temporary labor certification with the Secretary
of Labor,” which “certification shall be advice to the director
[of the DHS] on whether or not United States workers
capable of performing the temporary services or labor are
available and whether or not the alien’s 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). Although the DHS’s decision to grant an
H-2B petition depends, in part, on whether or not the DOL
issues a temporary labor certification to the petitioner-
employer, it is the DHS—not the DOL—that must determine
whether the other criteria for an H-2B visa have been
satisfied. For example, even if the DOL issues an employer a
temporary labor certification, the DHS must still determine
whether the alien intends to remain in the United States on a
temporary basis and not abandon his or her foreign residence.
See 8 U.S.C. § 101(a)(15)(H)(ii)(b); 2008 Wage Rule, 73 Fed.
35
Reg. at 78, 115 (explaining that after the DOL issues a
temporary labor certification, “DHS reviews all of the
necessary documentation that is required to be submitted with
the petition,” and “may examine elements that are presented
not only on the petition, but on the temporary labor
certification as well for consistency such as stated wages, the
nature of the job offered, the location, and other factors
common to both petition and temporary labor certification”).
Moreover, it is ultimately within the DHS’s discretion to
grant or deny H-2B visa petitions after assessing whether the
above-described requirements have been satisfied. See 8
U.S.C. § 1184(c)(1); see also 2008 Wage Rule, 73 Fed. Reg.
at 78,115 (“While DHS will not go into the merits of the
determination previously made by DOL, DHS is responsible
for ensuring the integrity of the H-2B program, that the facts
presented in the entire petition package are true and
verifiable.”).
Regulation 214.2 therefore does not effect a delegation
of authority, but instead provides for a type of “legitimate
outside party input into agency decision-making processes.”
U.S. Telecom Ass’n, 359 F.3d at 566. Our sister Courts of
Appeals have recognized three such types of permissible
assistance: “(1) establishing a reasonable condition for
granting federal approval; (2) fact gathering; and (3) advice
giving.” Id. The scheme established under regulation 214.2
fits the first of these models. By adopting a rule that requires
H-2B employers to first obtain a temporary labor certification
from the DOL on the questions of whether there are U.S.
workers capable of performing the job in question and the
impact of the aliens’ employment on U.S. workers, and
giving the DOL discretion to issue a limited set of rules
governing the certification process, the DHS was exercising
36
its broad authority to “determine” the specific “question of
importing any alien” under the H-2B visa program. 8 U.S.C.
§1184(a), (c). The DHS thus did not impermissibly
subdelegate all of its authority in this area. Rather, the DHS
conditioned its own granting of an H-2B petition on the
DOL’s grant of a temporary labor certification.
Where Congress has entrusted a federal agency with
broad discretion to permit or forbid certain activities, we will
uphold the agency’s conditioning of its “grant of permission
on the decision of another entity, such as a state, local, or
tribal government, so long as there is a reasonable connection
between the outside agency’s decision and the federal
agency’s determination.” U.S. Telecom Ass’n, 359 F.3d at
567. Here, Congress has charged the DHS with determining
whether or not to grant H-2B visa petitions. See 8 U.S.C. §§
1101(a)(15)(H)(ii)(b), 1184(c). As part of that determination,
the DHS must consider whether there are United States
citizens willing to perform the job for which an H-2B visa is
sought. See id. § 1101(a)(15)(H)(ii)(b). The DHS has been
further instructed pursuant to section 1184(c) of the INA to
“consult[]” with “appropriate agencies of the Government” in
making H-2B visa determinations. Id. § 1184(c)(1). The
INA does not define what constitutes “consultation,” nor does
it specify the agencies with which the DHS may (or may not)
consult in administering the H-2B program. See id. §§ 1101,
1184(c)(1).
We find that there is a “reasonable connection”
between the DHS’s determination of H-2B petitions and the
DOL’s decisions on temporary labor certifications in light of
the statute’s silence as to what constitutes permissible
“consultation” and the specific agencies with which the DHS
may consult in making H-2B visa determinations. U.S.
37
Telecom Ass’n, 359 F.3d at 567. This is especially so in
consideration of the DOL’s institutional expertise in labor and
employment matters, as well as the Department’s history of
rulemaking authority in the context of the H-2B program.
The DOL has been involved in the administration of the
nation’s immigration laws since its inception in 1913, and for
the past six decades, has provided temporary labor
certifications in some form to the government agency charged
with administering the nation’s immigration laws concerning
admission of temporary non-agricultural workers. See La.
Forestry Ass’n, 889 F. Supp. 2d at 716 n.2. Beginning in the
1960s, the DOL provided certifications to INS at INS’s
request. See 31 Fed. Reg. at 4,446 (INS regulation requiring
H-2B petitioners to first obtain a “certification from the
Secretary of Labor . . . stating that qualified persons in the
United States are not available . . . .”); 31 Fed. Reg. at 11,744
(same); 33 Fed. Reg. at 7,570 (1968 DOL regulation
governing the certification process); 43 Fed. Reg. at 10,306
(1978 regulation concerning the same); Gen. Admin. Ltr., No.
4-95; Gen. Admin. Ltr., No. 2-98. In 2002, when authority to
administer the INA was transferred to the DHS, the DOL
continued its role of providing temporary labor certifications
and advice about the availability of U.S. workers for H-2B
jobs and the effect of H-2B workers’ employment on U.S.
workers’ wages. See La. Forestry Ass’n, 889 F. Supp. 2d at
717; 2008 Wage Rule, 73 Fed. Reg. at 78,020.
It was likewise reasonable for the DHS to adopt a
regulatory provision allowing the DOL to promulgate a
narrow class of rules governing the temporary labor
certification process. Without the ability to establish
procedures to administer the temporary labor certification
process, the DOL would not be able to fulfill the consulting
38
role defined by DHS’s charge to the DOL to issue temporary
labor certifications. The DHS afforded DOL only as much
rulemaking authority as needed to carry out its consultative
role by issuing temporary labor certifications. Furthermore,
as noted above, the DOL has institutional expertise in matters
concerning U.S. employment, and a long and extensive
history of issuing temporary labor certifications for non-
agricultural jobs and making limited rules to structure the
issuance of such certifications. Thus, there is a “reasonable
connection” between the DOL’s limited rulemaking authority
and the DHS’s determination of H-2B visa petitions. U.S.
Telecom. Ass’n, 359 F.3d at 567.
We further note that Congress is and has been aware of
the DOL’s involvement in the administration of the H-2B visa
program for several decades, and yet, despite several
opportunities to do so, has never amended the INA to prohibit
the DOL’s involvement in the H-2B program or to specify
which agencies are the “appropriate” ones with which the
DHS may consult in exercising its authority to grant or deny
H-2B visas. For example, when it bifurcated the H-2
program to create the H-2A and H-2B programs, Congress
specifically named the DOL as the agency with which the
DHS must consult in administering the H-2A program. See
IRCA § 301(b) (“8 U.S.C. § 1184(c) is amended by adding at
the end of the following: ‘For purposes of this subsection
with respect to nonimmigrants described in section
101(a)(14)(H)(ii)(a), the term ‘appropriate agencies of
Government’ means the Department of Labor . . . .’”).
However, Congress was silent as to which agencies,
specifically, the DHS may “consult[]” with in its
administration of the H-2B program, choosing broad
language—“appropriate agencies,” 8 U.S.C. § 1184(c)—and
39
thus affording the DHS greater discretion with respect to the
agencies with which it may consult concerning the H-2B
program. See Addison v. Holly Hill Fruit Products, 322 U.S.
607, 616 (1944) (“[W]hen Congress wants to give wide
discretion it uses broad language.”).
Nor did Congress enact any changes to the H-2B
program after the Supreme Court’s decision in Alfred L.
Snapp & Son, Inc., v. Puerto Rico, 458 U.S. 592 (1982),
where the Court recognized that the DOL promulgates rules
concerning the H-2B program, despite enacting amendments
to the INA in both 2005 and 2011. “The normal rule of
statutory construction is that if Congress intends for
legislation to change the interpretation of a judicially created
concept, it makes that intent specific.” Midatlantic Nat’l
Bank v. N.J. Dep’t of Envtl. Prot., 474 U.S. 494, 501 (1986).
If, in fact, Congress did not intend to allow the DHS to
consult with the DOL in this manner when it enacted section
1184(c)(1), then Congress may amend the INA accordingly.
Where, however, an agency reasonably construes a statute
endowing it with broad authority, we must defer to that
interpretation, and “the remedy, if any is indicated, is for
congressional, and not judicial, action.” Flood v. Kuhn, 407
U.S. 258, 285 (1972).
We thus reject Appellants’ contention that the 2011
Wage Rule was promulgated pursuant to an unlawful
subdelegation of the DHS’s authority to administer the H-2B
program. We hold, instead, that the 2011 Wage Rule was
issued pursuant to the DHS’s permissible “conditioning” of
the grant of H-2B petitions on the advice of the DOL pursuant
to the DHS’s charge from Congress to “determine[]” H-2B
visa petitions “after consultation with appropriate agencies of
the Government.” 8 U.S.C. § 1184(c)(1). Because we find
40
that the 2011 Wage Rule was promulgated pursuant to a
permissible conditioning of the DHS’s granting of H-2B
petitions on a decision by the DOL and the limited
rulemaking authority the DOL has to carry out that charge,
we need not decide today whether, as the Departments
contend and Appellants vigorously contest, the DOL has
express or implied statutory authority under the WPA or INA
to promulgate rules concerning the H-2B program. See
Taylor v. Peoples Natural Gas Co., 49 F.3d 982, 992 (3d Cir.
1995) (“It is well settled law that in general [c]ases are to be
decided on the narrowest legal grounds available, and relief is
to be tailored carefully to the nature of the dispute before the
court.”) (quotation marks omitted). We leave that question,
which remains open in this Circuit, for another day, and hold
only that the 2011 Wage Rule was lawfully promulgated
pursuant to a reasonable interpretation of a statutory provision
charging the DHS with administration of the H-2B program.
See 8 U.S.C. § 1184. Our decision is completed by the
principles of deference governing our review on appeal.17 See
17
We acknowledge that the decision we reach today is
a difficult one, especially because the result we reach may
potentially create a split between our Court and the Eleventh
Circuit. In a recent review of a preliminary injunction of the
2011 Wage Rule, the Eleventh Circuit rejected the DOL’s
argument that it has rulemaking authority in the context of the
H-2B program pursuant to a lawful conditioning by DHS of
its authority to grant or deny H-2B visa petitions. See Bayou
Lawn & Landscape Servs. v. Sec. of Labor, 713 F.3d 1080
(11th Cir. 2013).
Our decision in this case is “influence[d] by the policy
consideration that circuit splits, especially in the circumstance
41
of this case in which national uniformity of a single rule is of
vital importance, are to be avoided.” Sam L. Majors Jewelers
v. ABX, Inc., 117 F.3d 922, 929 n.16 (5th Cir. 1997). We thus
emphasize that under the governing standards of review, and
in consideration of the important principles of separation of
powers that guide our review of agency action, we feel bound
to defer to the DHS’s interpretation of the statutes under
which Congress has authorized it to administer the H-2B
program. See Chevron, 467 U.S. at 845. We reiterate that
should Congress disagree with this construction of the INA,
Congress may take action to amend the statute accordingly.
We further note that the procedural posture of Bayou—an
appeal from the grant of a preliminary injunction, rather than
from a final judgment—means that the Bayou Court’s
decision is not the final word from the Eleventh Circuit on the
question of the DOL’s general rulemaking authority. The
three-member panel in Bayou opined only on whether the
District Court abused its discretion in finding that the
employer-plaintiffs were likely to succeed on the merits of
their challenge to the DOL’s rulemaking authority, not on
whether the DOL actually has that authority or not. See
Bayou, 713 F.3d at 1085; Pitt News v. Pappert, 379 F.3d 96,
104 (3d Cir. 2004) (“[I]t is well established that . . . a panel
hearing an appeal from the entry of a final judgment [is not
required] to follow the legal analysis contained in a prior
panel decision addressing the question of whether a party that
moved for preliminary injunctive relief showed a likelihood
of success on the merits.”). A circuit split is thus not yet a
foregone conclusion.
42
Linmark Assocs., Inc. v. Willingboro Twp., 431 U.S. 85, 98
(1977).
B.
Having determined that the DOL has authority to
engage in rulemaking concerning the H-2B program, we turn
to Appellants’ argument that even if the DOL has general
rulemaking authority, it exceeded that authority when issuing
the 2011 Wage Rule. Appellants present several procedural
and substantive challenges under the APA and INA,
respectively. We address each in turn.
1.
The 2011 Wage Rule was promulgated pursuant to the
informal rulemaking procedures of section 553 of the APA.
See 5 U.S.C. § 553. “The agency’s action in promulgating
such standards therefore may be set aside if found to be
‘arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law.’” Motor Vehicle Mfrs. Ass’n of U.S.,
Inc. v. State Farm. Mut. Auto. Ins. Co., 463 U.S. 29, 41
(1983) (quoting 5 U.S.C. § 706(2)(A)). “A court may
conclude that a regulation is arbitrary and capricious only if
the agency relied on facts other than those intended by
Congress, did not consider an important aspect of the issue
confronting the agency, provided an explanation for its
decision which runs counter to the evidence before the
agency, or is entirely implausible.” Gardner v. Grandolsky,
585 F.3d 786, 790 (3d Cir. 2009) (quotation marks omitted).
Although our “inquiry into the facts is to be searching and
careful, the ultimate standard of review is a narrow one.”
Citizens to Pres. Overton Park v. Volpe, 401 U.S. 402, 416
43
(1971). We are “not empowered to substitute [our] judgment
for that of the agency.” Id.
a.
Appellants first argue that the DOL failed to comply
with section 553 of the APA, which requires that an agency
publish general notice of a proposed rule in the Federal
Register and include in that notice “reference to the legal
authority under which the rule is proposed,” and “either the
terms or substance of the proposed rule or a description of the
subjects and issues involved.” 5 U.S.C. § 553(b)(2)&(3).
The purpose of “[s]ection 553 [is] . . . to give the public an
opportunity to participate in the rulemaking process,” and to
“enable[] the agency promulgating the rule to educate itself
before establishing rules and procedures which have a
substantial impact on those regulated.” Am. Iron & Steel Inst.
v. EPA, 568 F.2d 284, 291 (3d Cir. 1977). Thus, in
evaluating an argument that an agency failed to satisfy the
requirements of section 553, we ultimately “must determine
whether the notice given was sufficient to fairly apprise
interested parties of all significant subjects and issues
involved.” Id. (quotation marks omitted).
We disagree with Appellants that the DOL failed to
adequately explain the legal basis for, or purpose of, the 2011
Wage Rule. The DOL expressly identified 8 C.F.R. §
214.2(h)(6) as “the legal basis for the proposed rule” in a
section of the NPRM entitled “Succinct Statement of the
Objectives of, and Legal Basis for, the Proposed Rule.”
Proposed 2011 Wage Rule, 75 Fed. Reg. at 61,584.
Furthermore, as the District Court correctly observed, the
DOL also identified sections 1101(a)(15)(H)(ii)(B) and
1184(c)(1) of the INA as bases for its authority to issue the
44
2011 Wage Rule.18 In the NPRM, the DOL explained that the
DHS is charged with administering the H-2B program
pursuant to section 1101(a)(15)(H)(ii)(b) of the INA, and that
[s]ection 214(c)(1) of the INA
requires DHS to consult with
appropriate agencies before
approving an H-2B visa petition.
The regulations [8 C.F.R. §
214.2(h)(6)] for U.S. Citizenship
and Immigration Services
(USCIS), the agency within DHS
which adjudicates requests for H-
2B status, require that an
intending employer first apply for
a temporary labor certification
from the Secretary of Labor.
Id. at 61,578. The DOL also thoroughly explained the need
for the 2011 Wage Rule and identified the purpose of the
Rule. In a subsection entitled “The Need for New
Rulemaking,” the DOL explained:
[T]he Department ha[d] grown
increasingly concerned that the
current calculation method does
18
The fact that the DOL identified these provisions of
the INA as bases for the 2011 Wage Rule in a separate
section of the NPRM from that in which it cited regulation
214.2 is of no import, as “[t]he APA does not require that the
proposed rule cite the relevant legal authority in a certain
location.” United States v. Stevenson, 676 F.3d 557, 563 (6th
Cir. 2012).
45
not adequately reflect the
appropriate wage necessary to
ensure U.S. workers are not
adversely affected by the
employment of H-2b workers.
Additionally, the prevailing wage
calculation methodology became
the subject of litigation. . . .
Accordingly, in order to comply
with the Court’s order and to
appropriately establish a wage
methodology that adequately
protects U.S. and H-2B workers,
the Department is engaging in this
new rulemaking . . . .
Id. at 61,579; see also 75 Fed. Reg. at 61,584 (subsection
entitled “Description of the Reasons That Action by the
Agency Is Being Considered”). These statements “would
fairly apprise interested persons of the subjects and issues
before the [DOL],” and, more specifically, of the legal basis
and purpose of the proposed rule. Am. Iron & Steel Inst., 568
F.2d at 293. Accordingly, we agree with the District Court
that the DOL “provided sufficiently detailed notice to the
public of the DOL’s authority” as required by section 553(b).
La. Forestry Ass’n, 889 F. Supp. 2d at 732.
b.
Appellants next argue that the DOL failed to consider
employer interests or hardship and improperly established
wages to attract U.S. workers in promulgating the 2011 Wage
Rule. Appellants further contend that the DOL failed to
provide an adequate “reasoned analysis” in support of the
46
Rule. Appellants’ Br. at 65. Failure to consider relevant
factors or provide an adequate explanation for an agency
action are indeed among the “wide range of reasons why
agency action may be judicially branded as ‘arbitrary and
capricious.’” FEC v. Rose, 806 F.2d 1081, 1088 (D.C. Cir.
1986). We find, however, that the DOL satisfied both of
these requirements, “neither [of which] is particularly
demanding.” Pub. Citizen, 988 F.2d at 197.
First, as to the requirement that an agency consider
factors relevant to the rule in question, the APA requires only
that an agency “demonstrate that it has considered the
relevant factors brought to its attention by interested parties
during the course of the rulemaking, and that it has made a
reasoned choice among the various alternatives presented.”
Nat’l Indus. Sand Ass’n v. Marshall, 601 F.2d 689, 700 (3d
Cir. 1979). The DOL did so in this case. With respect to
employer interests and hardship, the DOL considered the
effect of the 2011 Wage Rule’s wage methodology on
employers, namely, that it would potentially result in
employers experiencing higher-than-anticipated labor costs.
See 2011 Wage Rule, 76 Fed. Reg. at 3,462. Directly in
response to comments expressing concern that “the
Department did not take into account contracts employers
have already put in place for the coming year,” the DOL
concluded that “[t]he fact that a new wage methodology may
result in wages in excess of anticipated labor costs does not
minimize the Department’s obligation” to provide for
calculation of a prevailing wage rate that does not have an
adverse impact on the wages of similarly-employed U.S.
workers. Id. In any event, the DOL is not required to
consider employer hardship under the statutory and regulatory
framework from which its authority to issue labor
47
certifications derives. The DOL must, instead, balance the
interests of “assur[ing] an adequate labor force on the one
hand and . . . protect[ing] the jobs of citizens on the other.”19
Rogers, 563 F.2d at 626; see 8 U.S.C. §
1101(a)(15)(H)(ii)(b); 8 C.F.R. § 214.2(h)(6)(iii)(A); see also
Snapp, 458 U.S. at 596. The DOL satisfied its obligations
under the APA by “respond[ing] to relevant and significant
public comments” concerning factors relevant to the 2011
Wage Rule and “adequately explaining its result.” Pub.
Citizen, 988 F.2d at 197.
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.” Appellants’ Br. at 60–61. 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
19
Indeed, the District Court in the CATA litigation
expressly found that the DOL was prohibited from
considering employer hardship in setting the prevailing wage
rate. See CATA II, 2011 WL 2414555, at *4. One may well
question that conclusion, since an employer's hardship can
certainly be relevant to the goal of protecting citizens' jobs,
but that issue is not before us in this appeal and we thus
express no further comment on the propriety of that holding.
48
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. 8 U.S.C. §§ 1101(a)(15)(H)(ii)(b), 1184(c)(1). The
DOL’s statements concerning the proposed methodology’s
potential to “attract” U.S. workers to which Appellants object
were made in the course of its discussion of whether the
proposed wage methodology would “adversely affect[] the
wages of U.S. workers in those same jobs,” and in the
Department’s economic analysis of the effect of the Rule—an
analysis required by Executive Order 12866. See Proposed
2011 Wage Rule, 75 Fed. Reg. 61,581 n.3; 2011 Wage Rule,
76 Fed. Reg. at 3,454; 75 Fed. Reg. at 61,583; 76 Fed. Reg.
3,470. Thus it was neither arbitrary nor capricious for the
DOL to include in the NPRM and final rule an analysis and
discussion of the effects that the 2011 Wage Rule’s wage
calculation methodology might have on U.S. workers.
We likewise hold that the DOL provided the “reasoned
analysis supported by the evidence” required by the APA.
Prometheus Radio Project v. FCC, 652 F.3d 431, 462 (3d Cir.
2011). Appellants’ challenge to the DOL’s compliance with
this requirement focuses on the DOL’s purported failure to
respond to public comments “criti[cizing] DOL for adopting
diverse wage data sources and urg[ing] DOL to ‘show its
work’ to corroborate that the various methodologies were
mutually validating . . . .” Appellants’ Br. at 66. Appellants
also take issue with the DOL’s purported disregard of public
comments “urg[ing] DOL to make a more expansive view
[of] . . . adverse impact on other American co-workers.” Id.
at 67.
49
It is well established, however, that an “agency need
not address every comment” it receives. City of Waukesha v.
EPA, 320 F.3d 228, 257 (D.C. Cir. 2003). The APA requires
only that the NPRM show the court “what major issues of
policy were ventilated by the informal procedures and why
the agency reacted to them as it did.” Auto. Parts &
Accessories Ass’n v. Boyd, 407 F.2d 330, 338 (D.C. Cir.
1968). The DOL responded to comments concerning a
variety of topics related to the Proposed 2011 Wage Rule,
devoting an entire section of the final rule to discussing the
300 comments submitted. See 2011 Wage Rule, 76 Fed. Reg.
at 3,454–3,468. For example, the DOL responded to
comments concerning the ability of employers to find U.S.
workers interested in H-2B job opportunities; the propriety of
the wage methodology adopted, including use of SCA or
DBA wage data and the elimination of the four-tier wage
method; and the alleged error in the data the Department used
to measure the effect of the H-2B wage methodology on
wages. See id. at 3,454–3,463. The DOL also discussed
comments proposing alternative methods for calculating the
prevailing wage rule and explained why it rejected these
alternatives. See id. at 3,463–3,468. In responding to the
comments, and in the discussion portion of the notice
accompanying the final rule, the DOL “examine[d] the
relevant data and articulate[d] a satisfactory explanation for
its action including a ‘rational connection between the facts
found and the choice made.’” State Farm, 463 U.S. at 43
(quoting Burlington Truck Lines v. United States, 371 U.S.
156, 168 (1962)); see 2011 Wage Rule, 76 Fed. Reg. at
3,452–3,468. This is all that the APA requires.
Accordingly, the DOL did not act arbitrarily and
capriciously in contravention of the procedural requirements
50
of the APA, and the 2011 Wage Rule is not invalid on that
ground.
2.
Finally, we turn to Appellants’ substantive challenge
to the 2011 Wage Rule. Appellants contend that section
1182(p)(4) of the INA required the DOL to use the four-tier
wage methodology from the H-1B program as the prevailing
wage calculation mechanism in the H-2B program and erred
by eliminating the four-tier structure from the wage
calculation regime. Under section 706 of the APA, we must
set aside an agency action that is “in excess of statutory
jurisdiction, authority, or limitations, or short of statutory
right.” 5 U.S.C. § 706(2)(C). This inquiry “necessarily
entails a firsthand judicial comparison of the claimed
excessive action with the pertinent statutory authority.” W.
Union Tel. Co. v. FCC, 541 F.2d 346, 354 (3d Cir. 1976).
Section 1182(p)(4) provides:
Where the Secretary of Labor
uses, or makes available to
employers, a governmental survey
to determine the prevailing wage,
such survey shall provide at least
4 levels of wages commensurate
with experience, education, and
the level of supervision. Where
an existing government survey
has only 2 levels, 2 intermediate
levels may be created by dividing
by 3, the difference between the 2
levels offered, adding the quotient
51
thus obtained to the first level and
subtracting that quotient from the
second level.
8 U.S.C. § 1182(p)(4) (2012). We acknowledge that this
statement, taken alone and out of context, suggests that the
four-tier methodology should be used in making prevailing
wage determinations. But therein lies the problem with
Appellants’ argument: it is taken entirely out of context, with
no reference to the section or subsection within which it is
was enacted. Indeed, it is axiomatic that “the proper reading
of a statute must take account of words in the context of the
entire statute.” United States v. Atiyeh, 402 F.3d 354, 366 (3d
Cir. 2005); see also FDA v. Brown & Williamson Tobacco
Corp., 529 U.S. 120, 132 (2000) (“The meaning—or
ambiguity—of certain words or phrases may only become
evident when placed in context.”).
We therefore turn to the statutory context of section
1182(p)(4), which was enacted as part of the Consolidated
Appropriations Act of 2005, and, more specifically, pursuant
to the Title IV, “Visa Reform,” sub-section 423, the “L-1
Visa and H-1B Visa Reform Act.” See Pub. L. No. 108-447,
div. J., tit. IV, § 423, 118 Stat. 2809, 3353–54 (2004). The
short title of the section under which section 1182(p)(4) was
enacted is “H-1B Prevailing Wage Level.” Id. Indeed, as its
title would suggest, the L-1 Visa and H-1B Visa Reform Act
amended only provisions of U.S. immigration statutes dealing
with the L-1 and H-1B visa programs—the H-2B program is
not mentioned once in the Act. See generally id. Read in this
context, it is abundantly clear that section 1182(p)(4)’s
requirement that the DOL use the four-tier methodology
applies only to the H-1B program. We therefore conclude
that the DOL did not act “in excess of statutory jurisdiction,
52
authority, or limitations, or short of statutory right” in
eliminating the four-tier scheme from the 2011 Wage Rule.20
5 U.S.C. § 706(2)(C). Accordingly, we reject Appellants’
argument that the 2011 Wage Rule violates the requirements
of the INA.21
20
Because we find that the statute is unambiguous, we
reject the Departments’ and Intervenors’ assertion that
Chevron deference is warranted. See Nat’l Cable, 545 U.S. at
982 (noting that Chevron deference is warranted only if the
court first finds that the statute is ambiguous).
21
We likewise reject Appellants’ argument that the
DOL violated the APA when it issued the April 2011 NPRM
in which it, among other things, modified the H-2B program
certification form, finding, as the District Court did, that
Appellants waived this argument. See La. Forestry Ass’n,
889 F. Supp. 2d at 737 n.19. We have carefully reviewed the
record—taking steps to obtain a complete copy of the
complaint, rather than the truncated version reproduced in the
Joint Appendix—and conclude that the claim was raised for
the first time only in pretrial memoranda and was not, as
Appellants claim, “prominently stated in the Complaint.”
Appellants Br. at 61. Compare J.A. 407-24, with D.C.
Docket, No. 1-11-cv-01623-DDD-JDK, No. 1 (W.D. La.
Sept. 19, 2011). Indeed, the April 2011 notice, 76 Fed. Reg.
21,036, is not cited one time in the Complaint. See D.C.
Docket, No. 1-11-cv-01623-DDD-JDK, No. 1. Nor did
Appellants move to amend the Complaint to include a
challenge to the April 2011 notice. Accordingly, the claim is
waived. See Josey v. John R. Hollingsworth Corp., 996 F.2d
53
 III.
For the foregoing reasons, we affirm the judgment of
the District Court.
632, 641-42 (3d Cir. 1993); Zimmerman v. PepsiCo., Inc.,
836 F.2d 173, 181 (3d Cir. 1988).
54