Labor Department Takes Restrictionist Position, Gets Zapped by the Courts

By David North on October 27, 2010

Every so often the U.S. Labor Department does the right thing vis-a-vis immigration, but gets reversed by the courts.

It happened the other day with a Fifth Circuit decision to, in effect, lower wages for H-2B workers to below levels set by the Labor Department, thus indirectly encouraging employers to use more of these workers, and thus to expand legal migration.

The decision was made in the New Orleans circuit, and was set off, apparently, by employer use of the H-2B program to bring in unskilled, non-agricultural workers to help clean up after Katrina; why the Bush administration, in the light of extensive unemployment of unskilled people in the region, let in the alien workers is an excellent question, but a different one.

The Labor Department's motivation was not so much to restrict immigration (I know, I used to work there), but to get a fair deal for the foreign workers. That this would make them more expensive to their employers was simply a side-effect, though a beneficial one in my eyes.

What the department tried to do, and what the courts vetoed, did not deal with wage rates, as such, but with fringes. The department wanted to make the employers pay the workers' fees for visa applications, travel, and placement. The court, in one of those en banc decisions, voted eight to six against the department's position.

In doing so, the Fifth Circuit ignored the department's long-time position that employers of H-2A farm workers had to pay such costs, with the majority saying that these were two separate programs, with separate rules. The minority called the distinction "spurious."

According to the 2009 Yearbook of Immigration Statistics, there were 149,763 admissions of H-2As in that year, and 56,381 of the H-2Bs.