Real fair, yes?
April 21, 2015 7:43 p.m. ET
Lawyers for the Labor Department on Wednesday will appear in federal court in Florida to answer to Judge M. Casey Rodgers, who sounds increasingly skeptical about the department’s honesty. The case is part of an attempt to regulate to death a legal guest-worker program.
It’s called H-2B, and many businesses rely on these visas to find workers for temporary or seasonal jobs—from processing crawfish in Louisiana to landscaping in Michigan. American jobs are also at stake. If a Maryland seafood company suffers because it can’t get enough foreign workers to shuck oysters, its American workers are put at risk too.
The legal issue is narrow and has to do with which federal department gets to run the program. The larger story is how President Obama’s Labor Department has been trying to make work visas so burdensome that they’re not worth the effort to apply for.
Labor has already bollixed up H-2A visas for agriculture. In recent years it has used its authority to impose all manner of new requirements ranging from dictating how pay is determined and what housing employers must provide to increasing the amount of paperwork. Now it’s trying to do the same to the H-2B program.
But Labor’s efforts hit a snag when Judge Rodgers ruled in December that Congress had given the authority over H-2Bs to Homeland Security, not Labor. Labor is appealing that ruling—and showing bad faith along the way. When Judge Rodgers blocked Labor from imposing new rules for H-2B’s in March, Labor responded by suspending the whole program and throwing businesses and workers into limbo. In response the judge granted a stay, which she last week extended to May 15. Her purpose was to ensure that employers could still get their visa applications processed for the summer jobs season.
But Judge Rodgers also set today’s hearing to consider outstanding motions, and the tone of her order suggests she remains doubtful about Labor’s intentions. She notes the fear by the Small and Seasonal Business Legal Center that the moment her stay expires, Labor will use her ruling to ensure the H-2B program is effectively dismantled or at least severely disrupted. Keep in mind that employers who seek H-2B visas are avoiding the easier route of hiring illegal migrants. They are being punished for following the law.
Congress is taking note. Last month a bipartisan group of Senators led by Maryland Democrat Barbara Mikulski called on Homeland Security to clean up this mess. This was followed by a bipartisan letter from 36 House Members led by Bob Goodlatte and Trey Gowdy, respectively, the chairmen of the House Judiciary Committee and House Immigration Subcommittee. They ask Homeland to keep Labor from gumming up the process and thus making it impossible for people to play by the rules.
All of this smacks of Labor Secretary Tom Perez once again doing the dirty work of the AFL-CIO, which hates guest-worker programs. Judge Rodgers shouldn’t let him get away with it.