1. H-2B employers won a major victory in 10th Circuit Court of Appeals.
2. Kudos to the Outdoor Amusement Business Association for leading the fight.
The Tenth Circuit handed H-2B employers a major victory last Thursday. In an Order, the Tenth Circuit rejected DHS' argument that it had "subdelegated" its power over the H-2B Program to DOL. The Court of Appeals highlighted the importance of OABA's friend of the court brief in the final decision:
Had the government’s 8 U.S.C. § 1103(a)(6) argument been timely raised and briefed, it would have prompted a decision. And if the argument were clearly correct, necessarily suggesting our order and judgment was incorrectly decided, we might be inclined to rehear the matter. But Amicus Outdoor Amusement Business Association has provided credible arguments as to why the statute cannot support the government’s belated argument. (Emphasis added).
What Does This Mean For You?
G.H. Daniels opens up the possibility that DHS will allow employers to hire H-2B workers, even if DOL has denied certification. In other words, the decision breaks DOL's chokehold over the H-2B Program. DOL can issue whatever regulations it wants, but DHS can still approve a visa petition. Although a recalcitrant government agency can resist an unfavorable court decision, this decision clears the field.
This is not the last chapter in this book, but it is an important and very positive development.