1. H-2B employers won a major victory.
2. DHS asked the Court of Appeals to reverse its decision.
3. DHS' strategy to avoid its responsibility is to delay, delay, delay, through this filing season.
The Court of Appeals handed DHS a major loss on September 4th in its G.H. Daniels decision. The Court of Appeals ruled that DHS' regulation requiring it to accept DOL's decisions on H-2B Applications was invalid.
DHS has now responded to its defeat by filing a Petition for Panel Rehearing. DHS is asking the same judges who unanimously rejected its position to turn on a dime and reverse themselves. Although surprises do occur, the decision is not difficult to predict.
After that, one can predict that DHS will file a Petition for Rehearing en banc presenting its arguments to all the judges on the 10th Circuit. Although surprises do occur, the decision is not difficult to predict.
One certainty is delay. Each of these petitions take time to decide and, if lightning strikes, so would more litigation.
Long ago, Villanova beat Georgetown by running the clock out. Now, DHS is using the same strategy to avoid the responsibility that Congress gave it. It is deja vu all over again.