standard against which to measure whether or not there was corresponding employment between u s and foreign workers this change was made in two thousand and ten with a statement that the department was really returning to the and eighty seven rule there had been a brief interlude in two thousand and eight when there was a sense of the same except for two problems that the current had a problem with one of which was the allowance of incidental employment outside of the agriculture has a very you a question us about just to understand your your argument in the end and the claim is it your contention that  removing in the occupations or in the same occupations removing that language did anything different or in addition to adding the in any work language well the yes the occupation is what the department of labor when it looks at a job or application to participate in the program it's the gatekeeper when it looks at the occupation as looking at all the duties described in the job where the skilled duties in the case in order to best order polars or it can be a farm that pickers and that's all they do in which case everyone does the same thing that is an easy judgement to make when you have the situation with over to the us where you have individuals who have to identify the two thousand and four writings of plants and then match them with their latin botanical names from customer orders this is highly skilled work and so different occupations are actual operative language of the two thousand and ten regulation says you may argue that it is improper for one reason or another but it is crystal clear is it not yes the language is clear it says any work and hire a lawyer to read it that's his problem well your honor i agree with you that the language of the rule is clear the question is whether you know it as it was applied to our client in the st time he was aware of it and he had basically had the same job were approved by the department of for twelve or thirteen years up until this point is is st opportunity to challenge the legality of the rule itself based on the statute but i want you to eliminate any question of not just because it's irrelevant regulation was crystal clear and have counsel and if your client didn't hire a lawyer to r question is what the regulation means and were you on notice of it the answer to both questions is yes it's clear perfectly clear what it means and you are on others so the fact that they  chevron and the administrative procedure act in terms of being a violation of the statute upon which it is best you know argument is very simply is that if you look at the statutory language which states basically we provisions here we have been able in a qualified which has been written out of the statute by this regulation and we have to simply employ u s workers may which the common thread between both of these statutory phrases is labor or service it's the labor services in the simile employed language upon which the department realized references that enable well in which references the petition in the petition is accompanied by the job order an applications the specific duties specified by it over to best and in this particular case it was certified in approved for thirteen years up to this this time by the department of labor before this issue is raised and you know we believe we believe very strongly that the but it going back to what the situation was before the regulation which path and i keep telling you and i don't understand you to say anything different it's irrelevant about the question is whether or not the statute can withstand scrutiny in terms of whether it's who can rule under the the provisions of the statute and that has been our interrelated they prompt the department has made the argument accepted by the district court that the you know the rule in this case you know is based upon sed the simile employed language strictly they believe that the qualification which is relevant but their purpose they rely upon is protecting us workers and they ignore the adequacy of the labor force which is the other purpose which isn't all stated have to be balanced you have to look at both of them and you can't justify the effect of which no effect of this rule is as discrimination it separates those who apply and are not qualified to do not have to be hired and  adverse effect on them as they are now even if there are no able willing workers available to do that nevertheless we were to protect against adverse effect otherwise prefer be performed by domestic workers that hurts them that takes away their job opportunity well you are that's not the case here because you had highly skilled workers who did th substantial majority of their job doing these highly skilled tasks and yet then so far they perform any other tasks that would otherwise be performed by domestic workers who are not able willing to do highly skilled work in so far as they're doing that work they're taking away from the domestic employees well two responses to that number one they basically the client was doing what the department of labor wanted them to do when it attacked the two thousand and eight rule d which basically the department had a problem with the incidental employment and the client put that they're not there stan council why you keep going back to two thousand and eight the question is what the two thousand and ten modified regulation means i was trying to respond to your question about whether or not the similarity and doing a few minor tasks can comments what was at bursley affecting them and whether the overt of s was trying to do was what the department wanted them to do was have full disclosure in their job order when it was advertised for domestic workers t like for the job and because there would be times when there would be an overlap in the duties when they're d essentially or working as a team in the workplace they wanted to protect themselves from a similar issue in the in the door decision where it said look congress has not defined what adverse act means that that case dealt with the methodology for the adverse affect wage wage rate must be pay zero and the reasoning applies here but was there was a change for that change was explained there's nothing improper about and agency changing its mind or  e language about occupations was removed same occupation but i don't recall seeing any reference to that change in the rule and that was raised in the opening brief pages forty three and forty four i believe of the opening brief and i didn't see any response to that in your brief did i miss that in either the rule or in your brief as far as any explanation for why the occupation's language was taken out is that if it was any work if you had to pay the adverse effect wage rate to those u s workers so and so that you know it is true that it used the word occupations program works or the age to a workers paid the adverse effect rate for everything that they do whether it's the kind of the what specifically in their qualifications or in this case when they are doing the other agricultural or other any work they're paid the same wage rate for all of it as i correct i believe that's correct performed say twenty percent spent twenty percent of their time on unskilled work that a the unskilled workers would get all of the levels i thought they would only get hey who are the kind who were there was one skill that the foreign workers did the wages for the similarly employed and for them they get the adverse effect a wage for work that's the same as that performed by the h two a workers but i thought they don't get the adverse effect wage for other work they  work in the the to specific qualifications but twenty percent of their work is unskilled work that domestic workers also do  question is just simply they get paid that adverse effect wage for the twenty percent the same as the eighty percent right well if the answer whatever was was in the job or whatever the employer certified it worked a well it would be avarice at wage rate is just so so one of the things i'm trying to understand and help me i'm a little sick here is why it would be in the employer's interest to have them at least economic interests to have them do work kind of  outside of the skilled work for lack of a better way of putting it if they're going to pay these foreign workers a higher wage then domestic workers to do the same work why why is that kind of ever in their economic interest to do that well employers have to make different decisions business decisions based on and that's simply a let me let me put it this way i think there is discussion in the in your briefs of a hypothetical situation where really there is only enough skilled work for eight employees but instead of only hiring eight of the foreign h to a employees the company might hire ten in and  basically kind of use that extra capacity to have those h two a workers doing work that u s workers could be doing and we don't want that to happen we want to protect jobs of u workers that makes sense if they would be paying the foreign workers less than what they would have to pay us work but i don't really understand how that makes sense if they got to pay the foreign workers more than what they have to pay us work that mag try an answer that as a former labor racial well  he knows that say ten or twenty percent of the time they won't be occupied on skilled work and they would like to be able to take incidental unskilled work otherwise they would just be sitting around doing nothing and that's not very economical now when they do that non skilled work of course they're paid even under the old system higher wages but it's still worth it have them not sitting around was at a dead loss but when they do perform the unskilled work they're taking in away from the unskilled workers so they're adversely affecting their well labor conditions so that's what i understand the regulation is mean am i not correct you know there is one scenario so for course so they the judge will consider us a very good question what is the economic incentive for the employer to have this high skilled workers doing unskilled work and the a and they don't want the employer doesn't want them sitting around so he would like them doing that work now he will pay a high rate for that but is better than the sitting around and when they do do that work they are grossly affect the domestic workers because they take away some of their jobs some of their work and it's not just wages it's conditions and why not correct and that's  a cost cutting measure they pay for the free housing they pay there in bound and out on transportation costs as in addition to the elevated wage the back wages side in this case are for the entire period that the production workers who did not have the skills coincided employment with the h two a it is a absolute practical impossibility to go around the workforce and look at what every person is doing at one time and measure in minutes exactly when there is an overlap and duty the reason the incidental duty language is put into the occupation order polar was to avoid the problem as i mentioned the department was so concerned about and eliminated in two thousand and eight that was the reason it was done the client wanted to have full disclosure when there are times in a dynamic agricultural workforce where people are working together esteems to do things whether it's only in plants but in them and trucks filling out the orders concurrence them to what the customer wants it would be an absolute in practicality as suggested in the brief before this court by the department to go around and having teams with language was not to bring the entire workforce into the adverse effect wage but that is exactly what has happened here they have basically created an impractical situation which is impossible to comply with in the nature a work force in the department in the preamble this rule acknowledged that when they looked at golf occasions for jobs their intent was not to micromanage and tell business operations how to run their businesses and that's exactly what has happen here in their part that is stated in our brave and as their expert in the countrywide jim mooney on this program who did the art it conceded it's pretty much impossible for in the arguments will take this case under submission