2014 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

2-5-2014

Louisiana Forestry Association v. Secretary United

States Depart

Precedential or Non-Precedential: Precedential

Docket 12-4030

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2014

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2014 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"Louisiana Forestry Association v. Secretary United States Depart" (2014). 2014 Decisions. Paper 149.

http://digitalcommons.law.villanova.edu/thirdcircuit_2014/149
PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 12-4030

____________ 

 

LOUISIANA FORESTRY ASSOCIATION INC.; 

OUTDOOR AMUSEMENT BUSINESS ASSOCIATION 

INC.; CRAWFISH PROCESSORS ALLIANCE; FOREST 

RESOURCES ASSOCIATION INC.; AMERICAN HOTEL 

& LODGING ASSOCIATION; AMERICAN SUGAR 

CANE LEAGUE OF USA INC.,

Appellants

v.

SECRETARY UNITED STATES DEPARTMENT OF 

LABOR; JANE OATES, in her official capacity as United 

States Assistant Secretary of Labor Employment and Training 

Administration; UNITED STATES DEPARTMENT OF 

LABOR; SECRETARY UNITED STATES DEPARTMENT 

OF HOMELAND SECURITY; UNITED STATES 

DEPARTMENT OF HOMELAND SECURITY

____________ 

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 2-11-cv-07687)

District Judge: Honorable Legrome D. Davis
2

___________ 

Argued May 31, 2013

Before: JORDAN and VANASKIE, Circuit Judges, and 

RAKOFF,* District Judge.

(Filed: February 5, 2014)

R. Wayne Pierce, Esq. [ARGUED]

Pierce Law Firm

Suite 106

133 Defense Highway

Annapolis, MD 21401

Veronica W. Saltz, Esq.

Saltz Matkov 

998 Old Eagle School Road

Suite 1206

Wayne, PA 19087

Leon R. Sequeira, Esq.

Seyfarth Shaw

975 F Street, N.W.

Washington, DC 20004

Counsel for Appellants

Geoffrey Forney, Esq. [ARGUED]

United States Department of Justice

 

*

 Honorable Jed S. Rakoff, Senior Judge of the United 

States District Court for the Southern District of New York, 

sitting by designation.
3

Office of Immigration Litigation 

Room 6223 

450 5th Street, N.W.

Washington, DC 20001

Harry L. Sheinfeld, Esq.

United States Department of Labor

Office of the Solicitor

Room N-2101

200 Constitution Avenue, N.W.

Washington, DC 20210

Counsel for Appellees

Arthur N. Read, Esq. 

Friends of Farmworkers, Inc.

42 South 15th Street

Suite 605

Philadelphia, PA 19102

Meredith B. Stewart, Esq. 

Southern Poverty Law Center

1055 Saint Charles Avenue 

Suite 505 

New Orleans, LA 70130

Sarah M. Claassen, Esq. 

Elizabeth D. Mauldin, Esq. 

Centro de los Derechos del Migrante, Inc. 

519 North Charles Street 

Suite 260 

Baltimore, MD 21201 

Edward J. Tuddenham, Esq. [ARGUED] 
4

228 West 137th Street

New York, NY 10030

Counsel for Intervenors

___________ 

OPINION OF THE COURT 

___________

VANASKIE, Circuit Judge.

Appellants, a group of associations representing 

employers in non-agricultural industries, claim that the 

Department of Labor exceeded its authority by enacting a 

regulation governing the calculation of the minimum wage a 

U.S. employer must offer in order to recruit foreign workers 

under the H-2B visa program. The District Court granted 

summary judgment for the Department of Labor and its codefendants, the Secretary of Labor, the Department of 

Homeland Security, and the Secretary of Homeland Security. 

Having concluded that the regulation was validly 

promulgated, we affirm the judgment of the District Court.

I.

On January 19, 2011, the Department of Labor (the 

“DOL”) issued a new regulation governing the calculation of 

the minimum wage a U.S. employer must offer in order to 

recruit foreign workers as part of the H-2B visa program, 

which permits U.S. employers to recruit foreign workers to 

fill unskilled, non-agricultural positions that no qualified U.S. 

worker will accept. See Wage Methodology for the 

Temporary Non-agricultural Employment H-2B Program, 76 

Fed. Reg. 3,452 (Jan. 19, 2011) (codified at 20 C.F.R. §

655.10) (the “2011 Wage Rule”). In September 2011, 
5

Appellants—a group of associations representing employers 

in non-agricultural industries which recruit H-2B workers and 

stand to face higher labor costs as a result of the 2011 Wage 

Rule1—challenged the validity of the 2011 Rule by initiating 

an action against the Department of Labor, the Department of 

Homeland Security, and the Secretaries of the respective 

agencies. Also party to this appeal is a group of individuals 

and organizations representing foreign and U.S. workers 

impacted by the H-2B program (“the Intervenors”).2 The 

Intervenors were plaintiffs in a prior suit that successfully 

challenged the 2008 Wage Rule, the predecessor to the 2011 

Wage Rule.

A. STATUTORY AND REGULATORY FRAMEWORK

1. The H-2B Visa Program

The Immigration and Nationality Act of 1952 

established the modern framework for regulation of 

immigration in the United States, including provisions for the 

admission of permanent and temporary foreign workers. See 

 

1

 The five appellants are the Louisiana Forestry 

Association, Inc.; Outdoor Amusement Business Association, 

Inc.; Forest Resource Association, Inc.; American Hotel and 

Lodging Association; and American Sugar Cane League of 

U.S.A., Inc. 

2

 The eight intervenors are Jahamel Abuleche, 

Romulo Abuleche, Comite Apoyo de los Trabajadores 

Agricolas, Mark Cunanan, Salvador Martinez Barrera, 

Pineros Campesinos Unidos del Noroeste, Jesus Vite Lopez, 

and the Alliance of Forest Workers and Harvesters. 
6

Immigration and Nationality Act of 1952 (“INA”), Pub. L. 

No. 82-414, 66 Stat. 163 (codified as amended at 8 U.S.C. §§ 

1101 et seq.). One such provision was the H-2 visa program, 

which governed the recruitment of unskilled foreign workers 

for agricultural and non-agricultural jobs. Id. § 

101(a)(15)(H)(ii). In 1986, Congress enacted the 

Immigration Reform and Control Act of 1986 (“IRCA”), 

which amended the INA by, among other things, bifurcating

the H-2 visa program into the H-2A and H-2B programs, 

which govern the admission of agricultural and nonagricultural workers, respectively. See Pub. L. No. 99-603, § 

301(a), 100 Stat. 3359, 3411 (amending 8 U.S.C. § 

1101(a)(15)(H)(ii)(a)-(b)). Named for the statutory section 

under which it was created, the H-2B program permits U.S. 

employers to recruit and hire temporary unskilled, nonagricultural workers from abroad to fill positions that no 

qualified U.S. worker will accept. See 8 U.S.C. § 

1101(a)(15)(H)(ii)(b) (stating that U.S. employers may hire 

an individual “having residence in a foreign country which he 

has no intention of abandoning who is coming temporarily to 

the United States to perform other temporary service or labor 

if unemployed persons capable of performing such service or 

labor cannot be found in this country . . . .”).

Congress initially charged the Attorney General of the 

United States with implementing the INA, including the 

provisions of the Act governing the H-2 visa program. See 8 

U.S.C. § 1184(a)(1). In 2002, Congress abolished the 

Immigration and Naturalization Service (“INS”), see 6 U.S.C. 

§ 291, and transferred jurisdiction to enforce and administer 

the nation’s immigration laws from the Attorney General to

the Secretary of Homeland Security. See 6 U.S.C. §§ 202, 

557. Thus the authority to determine nonimmigrant visa 
7

petitions now rests with the Bureau of Citizenship and 

Immigration Services, an agency within the Department of 

Homeland Security (“DHS”). See id. § 271(b).

The authority to administer the H-2B program is 

vested in the DHS pursuant to section 1184(c) of the INA, 

which directs that “[t]he question of any alien as a 

nonimmigrant under 8 U.S.C. § 1005(a)(15)(H) shall be 

determined by the [DHS] after consultation with appropriate 

agencies of the Government, upon petition of the importing 

employer.” 8 U.S.C. § 1184(c)(1).

3

The DHS has by 

regulation designated the DOL as the agency from which it 

seeks “advice” in determining whether to grant H-2B visa 

petitions. 8 C.F.R. § 214.2(h)(6)(iii) (2013). Specifically, the 

DHS requires an employer seeking an H-2B visa to first 

“apply for a temporary labor certification with the Secretary 

of Labor” prior to filing the visa petition. Id. § 

214.2(h)(6)(iii)(A). The regulation further provides that 

“[t]he labor certification shall be advice to the director [of the

DHS] on [1] whether or not United States workers capable of 

performing the temporary services or labor are available and 

[2] whether or not the alien’s employment will adversely 

affect the wages and working conditions of similarly 

employed United States workers.” Id. In other words, the 

DOL’s temporary labor certifications advise the DHS whether 

two of the INA’s several statutory requirements for issuance 

of an H-2B visa have been satisfied. See 8 U.S.C. § 

1101(a)(15)(H)(ii)(b). The DHS has also by regulation

 

3

 For the reasons explained above, all statutory 

references to the “Attorney General” in this context are now 

deemed to refer to the Secretary of Homeland Security. See 6 

U.S.C. § 557.
8

endowed the DOL with the authority to create the procedures 

necessary to fulfill its charge of issuing labor certifications:

The secretary of labor shall 

separately establish for the 

temporary labor program under 

his or her jurisdiction, by 

regulation at 20 CFR [§] 655, 

procedures for administering th[e]

temporary labor program . . . and 

shall determine the prevailing 

wage applicable to an application 

for temporary labor certification 

for that temporary labor program 

in accordance with the Secretary 

of Labor’s regulation at 20 CFR 

[§] 655.10.

8 C.F.R. § 214.2(h)(6)(iii)(D). The DHS has explained that it 

“must seek advice from the [DOL] under the H-2B 

classification because the statute requires a showing that 

unemployed U.S. workers are not available to perform the 

services before a petition can be approved. The [DOL] is the 

appropriate agency of the Government to make such a labor 

market finding.” Temporary Alien Workers Seeking 

Classification Under the Immigration and Nationality Act, 55 

Fed. Reg. 2,606, 2,617 (Jan. 26, 1990) (to be codified at 8 

C.F.R. § 214.2(h)).

In sum, the process for obtaining an H-2B visa 

proceeds in two general stages. First, an employer must 

obtain a temporary labor certification from the DOL. See 8 

C.F.R. § 214.2(h)(6)(iii)(A). This requires the employer to 

apply to the DOL for a prevailing wage determination for the 
9

area of intended employment. See 20 C.F.R. § 655.10. The 

DOL then calculates the prevailing wage based upon

pertinent regulations, e.g., the 2008 or 2011 Wage Rules. Id. 

The employer must also submit a work order with the state 

workforce agency serving the geographical area of intended 

employment and advertise the position at a wage equal to or 

higher than the prevailing wage as determined by the DOL. 

Id. Once these conditions have been satisfied, the DOL will 

issue the labor certification, which serves as the DOL’s 

verification that the employer has demonstrated that “there is 

an insufficient number of U.S. workers who are qualified and 

who will be available for the job opportunity for which 

certification is sought and that the employment of the H-2B 

workers will not adversely affect the benefits, wages, and 

working conditions of similarly employed U.S. workers.” Id.

§ 655.50(b). Only after the DOL issues the labor certification 

may an employer proceed to the second stage of the process: 

filing an H-2B visa application with the DHS. See 8 C.F.R. § 

214.2(h)(6)(iii)(C), (E). Although the DOL’s labor 

certification is a prerequisite to obtaining an H-2B visa 

petition, the authority to grant or deny an H-2B visa petition

ultimately rests with the DHS alone. See 8 U.S.C. § 1184(c).

2. The DOL’s Historical Role in the Administration of the H2B Program

The DOL has played a role in the administration of the 

nation’s immigration laws in general, and the admission of 

foreign workers in particular, since the Department’s 

inception in 1913. At the time the DOL was established, the 

Department “housed the Bureau of Immigration and the 

Bureau of Naturalization,” and “[a]s early as 1917, the 

Secretary of Labor and the Bureau of Immigration, then part 

of the DOL, worked together to manage the importation of 
10

laborers into the United States.” La. Forestry Ass’n v. Solis, 

889 F. Supp. 2d 711, 716 n.2 (E.D. Pa. 2012) (citations 

omitted). The Bureaus of Immigration and Naturalization 

merged in 1933 to form the INS, which remained part of the 

DOL until 1940 when it was transferred to the Department of 

Justice. Id.

The INS has long required employers seeking to admit 

workers under the H-2 program to first obtain “a certification 

from the Secretary of Labor or his designated representative 

stating that qualified persons in the United States are not 

available and that the employment policies of the [DOL] have 

been observed . . . .” Miscellaneous Amendments, 31 Fed. 

Reg. 4,446 (Mar. 16, 1966) (codified at 8 C.F.R. § 214.2). In 

1968, pursuant to these provisions, the DOL formally issued 

regulations of its own governing the certification process for 

the first time. See Certification of Temporary Foreign Labor 

for Industries Other than Agriculture or Logging, 33 Fed. 

Reg. 7,570–71 (May 22, 1968) (codified at 20 C.F.R. § 621). 

In later years, the DOL amended the regulations governing 

the certification process. See, e.g., Labor Certification 

Process, 43 Fed. Reg. 10,306 (Mar. 10, 1978) (codified in 

scattered sections of 20 C.F.R.).

The DOL continued its role in the administration of 

both the H-2A and H-2B visa programs after Congress’s 

passage of the IRCA bifurcated the H-2 program in 1986. 

Although the IRCA was silent as to the DOL’s rulemaking 

authority concerning the H-2B program,4see IRCA § 301(a),

 

4

 By contrast, Congress expressly granted DOL 

limited rulemaking authority over the H-2A program. See 

IRCA § 301(b) (“Section 214(c) (8 U.S.C. 1184(c)) is 

amended by adding at the end the following: ‘For purposes of 
11

the INS and its successor, the DHS, continued to authorize 

the DOL’s involvement pursuant to their own agency 

regulations. See, e.g., 8 C.F.R. § 214.2(h). During the first 

two decades of the H-2B program’s existence, the DOL

issued, without notice and comment, a series of General 

Administration Letters governing the determination of the 

prevailing wage rate for the H-2B program. See, e.g., Interim 

Prevailing Wage Policy for Nonagricultural Immigration 

Programs, Gen Admin. Ltr., No. 4-95 (Dep’t of Labor May 

18, 1995), available at

http://wdr.doleta.gov/directives/attach/GAL4-95_attach.pdf. 

In sum, these letters set the prevailing wage at the rate

negotiated under a governing collective bargaining agreement 

(“CBA”), or, if no CBA existed, the rate as determined under 

the Davis-Bacon Act (“DBA”), 40 U.S.C. §§ 3141 et seq., or 

McNamara-O’Hara Service Contract Act (“SCA”), 41 U.S.C. 

§§ 6701 et seq. See id. at 1–2. In the event that no CBA, 

DBA, or SCA wage rate was available, the prevailing wage 

was determined by wage surveys. Id. at 2. In 1998, the DOL 

first used the Occupational Employment Statistics (“OES”) 

survey as the source for determining the prevailing wage 

where no CBA, DBA, or SCA rate existed. See Prevailing 

Wage Policy for Nonagricultural Immigration Programs, Gen. 

Admin. Ltr., No. 2-98 (Dep’t of Labor Oct. 31, 1997),

available at http://wdr.doleta.gov/directives/attach/GAL2-

98_attach.pdf. During this time, the DOL also began to 

consider “skill level” in determining the prevailing wage, 

classifying H-2B employment opportunities as either “entry 

 

this subsection with respect to nonimmigrants described in 

section 101(a)(15)(H)(ii)(a), the term ‘appropriate agencies of 

Government’ means the Department of Labor and includes 

the Department of Agriculture.’”).
12

level” or “experienced level” and considering the skill level 

of an occupation as one of several factors affecting the 

prevailing wage rate for that job. See Gen. Admin. Ltr. 4-95, 

at 5–6.

The DOL abandoned the two-tier approach in 2005

and instead adopted the wage calculation methodology used 

in administering the H-1B program, which governs the 

temporary admission of aliens in skilled, specialty 

occupations. See 8 U.S.C. § 1101(a)(15)(H)(i)(b). Under the 

H-1B program’s wage calculation regime, the prevailing 

wage is determined by a four-tier system based on the skill 

level required for the occupation.5 See id. § 1182(p)(4). The 

 

5

The H-1B program’s four-tier system for 

determining the prevailing wage is set forth in 8 U.S.C. § 

1182(p)(4), which provides:

Where the Secretary of Labor 

uses, or makes available to 

employers, a governmental survey 

to determine the prevailing wage, 

such survey shall provide at least 

4 levels of wages commensurate 

with experience, education, and 

the level of supervision. Where 

an existing government survey 

has only 2 levels, 2 intermediate 

levels may be created by dividing 

by 3, the difference between the 2 

levels offered, adding the quotient 

thus obtained to the first level and 
13

DOL first applied the four-tier methodology to the H-2B visa 

program in a 2005 letter, which, like its predecessors, was 

issued without notice and comment. See Mem. To SWA 

Adm’rs from Emily Stover DeRocco, Asst. Sec’y for Emp’t 

& Training, Revised Prevailing Wage Determination 

Guidance (May 17, 2005). “That letter also announced that in 

the absence of a CBA, the DOL would use the OES program 

as the main source of data for establishing prevailing wages.” 

Id.

In 2008, for the first time since the 1960s, the DOL

promulgated a regulation governing the labor certification 

process through notice and comment rulemaking. See Labor 

Certification Process and Enforcement for Temporary 

Employment in Occupations Other Than Agriculture (H-2B 

Workers), 73 Fed. Reg. 78,020 (Dec. 19, 2008) (codified at 

20 C.F.R. §§655–56) (the “2008 Wage Rule”). The 2008 

Wage Rule codified several aspects of the DOL’s guidance in 

the 2005 letter discussed above. For example, the 2008 Rule 

provided that the four-tier methodology borrowed from the 

H-1B program should be used to calculate the prevailing 

wage. See id. at 78,020, 78,029, 78,056. The 2008 Rule

further required that the prevailing wage be determined by the 

rate specified by the governing CBA, or, in the absence of a 

CBA, “the arithmetic mean . . . of the wages of workers 

similarly employed at the skill level in the area of intended 

employment[,]” as calculated using OES data. Id. at 78,056. 

The Rule alternatively permitted use of employer surveys to 

establish the prevailing wage, provided certain conditions 

were satisfied. See id.

 

subtracting that quotient from the 

second level.
14

3. Subsequent Litigation and Rulemaking

In 2009, a group of individuals and organizations 

representing foreign and U.S. workers impacted by the H-2B 

program

6

initiated an action in the District Court for the 

Eastern District of Pennsylvania challenging the validity of 

the 2008 Wage Rule. See Comite de Apoyo a los 

Trabajadores Agricolas v. Solis, No. 09-240, 2010 WL 

3431761 (E.D. Pa. Aug. 30, 2010) (“CATA I” or “the CATA 

litigation”).7The CATA plaintiffs alleged that several 

provisions of the 2008 Wage Rule, including the provision

governing the calculation of the prevailing wage rate, violated 

the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701

et seq. The District Court agreed, holding that the DOL 

violated the APA in promulgating the 2008 Wage Rule by, 

among other things, importing into the H-2B program the H1B program’s four-tier wage calculation methodology, and by 

relying on OES data, rather than DBA or SCA data, to set the 

prevailing wage, without subjecting either provision to notice 

and comment.8 See id. at *4–7, 19, 25. Citing concerns that 

 

6

 As discussed in part I supra, these individuals are 

the Intervenors in this appeal.

7

 The CATA litigation, like this case, was originally 

assigned to Judge Pollak. Both cases were reassigned to 

Judge Davis following Judge Pollak’s death in May 2012. 

8

 The District Court explained that although “[a]s a 

general matter, of course, DOL’s [2008 Wage Rule] w[as] 

subjected to notice and comment,” the DOL ‘expressly 

refused to consider comments concerning the choice of 

appropriate data sets’ and the four-tier methodology.” CATA 
15

vacating the 2008 Wage Rule would result in a regulatory gap 

and leave the DOL with no method by which to calculate the 

prevailing wage, the District Court ordered the DOL to 

promulgate a replacement rule within 120 days, leaving intact 

the four-tier method until a new regulation was issued. Id. at 

25. 

In response to the District Court’s decision, the DOL 

issued a notice of proposed rulemaking (“NPRM”) setting 

forth a new method for calculating the prevailing wage. See 

Wage Methodology for the Temporary Non-Agricultural 

Employment H-2B Program, 75 Fed. Reg. 61,578 (proposed 

Oct. 5, 2010) (to be codified at 20 C.F.R. § 655.10) (the 

“Proposed 2011 Wage Rule”). The Proposed 2011 Wage 

Rule eliminated the four-tier skill-level methodology, and, as 

the NPRM explained, reflected the DOL’s concern that the 

four-tier regime did not produce “the appropriate wage 

necessary to ensure U.S. workers are not adversely affected 

by the employment of H-2B workers.” Id. at 61,579. The 

Proposed Rule defined the prevailing wage as “the highest of

the following: Wages established under an agreed-upon 

[CBA] . . .; a wage rate established under the DBA or SCA 

for that occupation in the area of intended employment; and 

the arithmetic mean wage rate established by the OES for that 

occupation in the area of intended employment.” Id. The 

DOL explained that the Proposed Rule would “best achieve 

the Department’s policy objectives of ensuring that wages of 

U.S. workers are more adequately protected and, thus, that 

 

I, 2010 WL 3431761, at *19. The District Court thus 

concluded that the provisions were “improperly promulgated 

without acceptance and consideration of comments as 

required by the APA.” Id.
16

employers are only permitted to bring H-2B workers into the 

country where the wages and working conditions of U.S. 

workers will not be adversely affected.” Id. at 61,581.

On January 19, 2011, the DOL published a final 

version of the 2011 Wage Rule, which is the subject of this 

appeal. See Wage Methodology for the Temporary Nonagricultural Employment H-2B Program, 76 Fed. Reg. 3,452 

(Jan. 19, 2011) (codified at 20 C.F.R. § 655.10) (the “2011 

Wage Rule”). In its final form, the 2011 Wage Rule 

establishes a wage calculation regime wherein the prevailing 

wage is the highest of the applicable CBA; the rate 

established under the DBA or SCA; or the OES mean. Id. at 

3,453, 3,484. The 2011 Wage Rule eliminates the four-tier 

methodology from the wage calculation regime “in favor of 

the mean OES wage for each occupational category,” and 

likewise bars the use of employer-submitted surveys if the 

prevailing wage can be determined based on OES data or the 

rates established under the DBA or SCA. Id. The notice of 

the final rule provided that the 2011 Wage Rule would take 

effect after a one-year delay, on January 1, 2012. Id. at 3,452. 

The DOL relied upon both the INA and DHS 

regulations as the basis for its authority to promulgate the 

2011 Wage Rule. Specifically, the DOL pointed to 8 U.S.C.

§ 1184(c)(1) and 8 C.F.R. § 214.2(h)(6), explaining:

Section 214(c)(1) of the INA 

requires DHS to consult with 

appropriate agencies before 

approving an H-2B visa petition. 

8 U.S.C. [§] 1184(c)(1). That 

consultation occurs according to a 

. . . regulatory requirement that an 
17

employer first obtain a temporary 

certification from the Secretary of 

Labor (the Secretary) establishing 

that U.S workers capable of 

performing the services or labor 

are not available, and that the 

employment of the foreign 

worker(s) will not adversely affect 

the wages and working conditions 

of similarly employed U.S. 

workers. 8 C.F.R. [§] 

214.2(h)(6).

The Secretary’s responsibility for 

the H-2B program is carried out 

by two agencies with the 

Department. Applications for 

labor certification are processed 

by the Office of Foreign Labor 

Certification (OFLC) in the 

Employment and Training 

Administration (ETA), the agency 

to which the Secretary has 

delegated those responsibilities 

described in . . . the H-2B 

regulations. Enforcement of the 

attestations and assurances made 

by employers in H-2B 

applications for labor certification 

is conducted by the Wage and 

Hour Division (WHD) under 

enforcement authority delegated 
18

to it by DHS. 8 U.S.C. [§]

1184(c)(14)(B).

Id. at 3,452. The DOL further noted that according to its 

estimates, “the change in the method of determining wages 

will result in a $4.83 increase in the weighted average hourly 

wage for H-2B workers and similarly employed U.S. 

workers[,]” and a total annual transfer cost of $847.4 million.9 

Id. at 3,469, 3,471. 

Four months later, the DOL published a notice in the 

Federal Register informing the public that H-2B employers 

would be expected to comply with the new prevailing wage 

rate when it took effect on January 1, 2012. See Application 

of the Prevailing Wage Methodology in the H-2B Program, 

76 Fed. Reg. 21,036, 21,036–37 (Apr. 14, 2011). At that 

time, the DOL also published a new appendix to the standard 

H-2B visa application form, which all employers are required 

to sign to obtain a labor certification from the DOL. See id.;

see also J.A. 185. The appendix added a requirement that a 

signatory employer certify that “[t]he offered wage equals or 

exceeds the highest of the most recent prevailing wage that is 

or will be issued by the [DOL] to the employer for the time 

period the work is performed.” J.A. 185. 

Although the 2011 Wage Rule was set to take effect on 

January 1, 2012, the CATA plaintiffs-Intervenors successfully 

challenged and accelerated its effective date. See Comite de 

Apoyo a los Trabajadores Agricolas v. Solis, 2011 WL 

 

9

 The total annual transfer cost is defined as the total 

additional wages employers participating in the H-2B 

program would be required to pay foreign workers recruited 

under the program. See 76 Fed. Reg. 3,471.
19

2414555, at *3-4 (E.D. Pa. June 16, 2011) (“CATA II”). On 

June 16, 2011, the District Court vacated the effective date of 

January 1, 2012, and ordered the DOL to issue a new 

effective date through notice and comment rulemaking. Id. at 

*5. After providing the public an opportunity to comment on 

the new date, the DOL issued a final rule accelerating the 

2011 Rule’s effective date to September 30, 2011. See Wage 

Methodology for the Temporary Non-Agricultural 

Employment H-2B Program; Amendment of Effective Date, 

76 Fed. Reg. 45,667, 45,673 (Aug. 1, 2011). 

The DOL subsequently postponed implementation of 

the 2011 Wage Rule, however, in response to provisions in 

riders to appropriations bills in which Congress expressly 

defunded implementation of the 2011 Rule. See, e.g., 

Consolidated and Further Continuing Appropriations Act, 

2012, Pub. L. 112-55, 125 Stat. 552, Div. B, Title V § 546 

(2011); Consolidated Appropriations Act, 2012, Pub. L. 112-

74, 125 Stat. 786, Div. F, Title I § 110 (2011); Continuing 

Appropriations Resolution, 2013, H.J. Res. 117, 112th Cong., 

126 Stat. 1313 (2012); Consolidated and Further Continuing 

Appropriations Act, 2013, Pub. L. 113-6, 127 Stat. 198, Div. 

F, Title 5 (2013). In the interim, the DOL continued to use 

the 2008 Wage Rule to calculate the prevailing wage for H2B visa applications. Although the DOL readily 

acknowledged that the 2008 Rule was invalid, it was unable 

to enforce the 2011 Wage Rule because, as discussed above, 

Congress continued to renew appropriations bans defunding 

the Rule’s implementation. Thus, in September 2012, the 

CATA plaintiffs-Intervenors moved to vacate the 2008 Wage 

Rule, and for preliminary and permanent injunctions barring 

its use. 
20

On March 21, 2013, the District Court granted the 

requested relief, vacating the provisions of the 2008 Wage 

Rule found to be invalid in its order of August 30, 2010. See 

Comite de Apoyo a los Trabajadores Agricolas v. Solis, 933 

F. Supp. 2d 700 (“CATA III”). The District Court observed 

that the DOL admitted that the 2008 Wage Rule “is 

procedurally and substantively invalid,” and explained why 

vacatur, which it had deemed inappropriate at the time it 

invalidated provisions of the 2008 Wage Rule in August of 

2010, was now the proper remedy:

[A]fter the DOL acknowledged 

the 2008 Wage Rule’s defects and 

promulgated an unsuccessful 

replacement rule, the DOL 

stopped entirely in its tracks. The 

DOL now expresses that it has no 

intention of taking further action 

to bring the DOL’s H-2B labor 

certification into statutory and 

regulatory compliance and instead 

urges that we leave undisturbed a 

rule that this Court found 

procedurally invalid thirty months 

ago and that has since been 

declared substantively invalid by 

the very agency that now urges us 

to leave the Rule in place.

Id. at 713–14. The District Court thus granted a permanent 

injunction, and ordered that the 2008 Wage Rule be vacated 

and the DOL “come into compliance within thirty (30) days.” 

Id. at 716. 
21

In response to the District Court’s order vacating the 

2008 Wage Rule, the DOL and the DHS issued a final interim 

rule on April 24, 2013. See Wage Methodology for the 

Temporary Non-Agricultural Employment H-2B Program, 

Part 2, 78 Fed. Reg. 24,047, 24,047–48 (Apr. 24, 2013) 

(codified at 8 C.F.R. §§ 214.2, 655.10) (the “2013 Interim 

Rule”). Like the 2011 Wage Rule, the 2013 Interim Rule 

eliminates the four-tier wage calculation methodology and 

provides that the prevailing wage will be “the arithmetic 

mean wage established in the OES survey, without the four 

levels.” Id. at 24,053. And, like the 2008 and 2011 Wage 

Rules, the Interim Rule permits the prevailing wage to be 

determined by the rate established in a governing CBA. Id. 

In contrast to the 2011 Wage Rule, however, the Interim Rule 

permits, but does not require, “an employer to use a 

prevailing wage determination based on the DBA or SCA.” 

Id. at 24,054. The Interim Rule leaves intact the 2008 Wage 

Rule’s provision allowing use of employer-provided surveys 

to calculate the prevailing wage, replacing the 2011 Wage 

Rule’s more stringent provision restricting use of employer 

surveys to only very “limited circumstances.” Id. at 24,054–

55. The Departments called for comments from the public 

regarding each of these provisions. Id. at 24,053–55.

As the basis for their respective authority to issue the 

2013 Interim Rule, the Departments cited the INA and DHS

regulations, explaining:

Section 214(c)(1) requires DHS to 

consult with “appropriate 

agencies of the Government” 

before adjudicating an H-2B 

petition. DHS has determined 

that, under this statutory 
22

provision, it must consult with 

DOL as part of the process of 

adjudicating H-2B petitions 

because DOL is the agency best 

situated to provide advice 

regarding whether “unemployed 

persons capable of performing 

such service or labor cannot be 

found in this country.” 8 U.S.C. 

[§] 1101(a)(15)(H)(ii)(b). DHS, 

in conjunction with DOL, has 

determined that the best way to 

provide this consultation is by 

requiring the employer . . . prior 

to filing an H-2B petition, to first 

apply for a temporary labor 

certification from the Secretary of 

Labor. 8 CFR [§] 

214.2(h)(6)(iii)(A).

Id. at 24,048. The Departments emphasized that the DHS and 

its predecessor, the INS, have consulted with the DOL in 

administering the H-2B program since 1968, and that the 

Rule “contains certain revisions to DHS’s H-2B rule to clarify 

that DHS is the Executive Branch agency charged with 

making determinations regarding eligibility for H-2B 

classification, after consulting with DOL for its advice about 

matters with which DOL has expertise, particularly, in this 

case, questions about the methodology for setting the 

prevailing wage in the H-2B program.” Id. at 24,048–49. 

The Departments further explained that the 2013 Interim Rule 

was issued “in response to the [District] [C]ourt’s order in 

[CATA III] . . . and to ensure that there is no question that the 
23

rule is in effect nationwide in light of other outstanding 

litigation.” Id. at 24,048.

The 2013 Interim Rule was made effective 

immediately, pursuant to the “good cause” exception to the 

APA’s requirement that agency rules be subject to a notice 

and comment period and take effect no sooner than 30 days 

after the final rule is published. Id. at 24,055–56 (citing 5 

U.S.C. § 553(b)(B), (d)(3)). According to the supplementary 

information to the Interim Final Rule, as well as the DOL’s 

briefing in this case, the Interim Rule is effective only “on a 

temporary basis,” until the 2011 Wage Rule takes effect. Id. 

at 24,056; Appellants’ Supp. Br. at 1-5.

On August 30, 2013, the DOL issued a rule in which it 

indefinitely delayed the effective date of the 2011 Wage Rule 

“to comply with recurrent legislation that prohibits [the 

Department] from using any funds to implement it, and to 

permit time for consideration of public comments sought in 

conjunction with [the 2013 Interim Final Rule] published 

April 24, 2013, 78 [Fed. Reg.] 24[,]047.” See Wage 

Methodology for the Temporary Non-Agricultural 

Employment H-2B Program; Delay of Effective Date, 78 Fed. 

Reg. 53,643 (Aug. 30, 2013) (the “Delay Rule”). The DOL 

noted, however, that:

If Congress no longer prohibits 

implementation of the 2011 Wage 

Rule, the Department will publish 

a document in the Federal 

Register within 45 days of that 

event apprising the public of the 

status of 20 CFR [§] 655.10 and 
24

the effective date of the 2011 

Wage Rule. 

Id. at 53,645. Under the Department of Labor Appropriations 

Act, 2014, effective January 17, 2014, Congress lifted the 

appropriations ban on the 2011 Wage Rule. See Pub. L. 113-

76, Div. H, Title I (2014).

10

B. FACTUAL AND PROCEDURAL BACKGROUND

 

10

 The parties jointly maintain that this appeal remains 

ripe despite the DOL’s stay of the 2011 Wage Rule. We 

agree. This case involves a facial challenge to an 

administrative rule, now fully funded, that the parties expect 

to be implemented swiftly and with a direct and foreseeable 

impact. Because no further factual development is necessary 

and the remaining issues are purely legal challenges to a 

“final agency action,” 5 U.S.C. § 704, the matter is thus “fit[] 

. . . for judicial decision,” Abbott Labs. v. Gardner, 387 U.S. 

136, 149 (1967), abrogated by on other grounds by Califano 

v. Sanders, 430 U.S. 99 (1977). And because we discern no 

institutional interest in delay, and none is otherwise offered, 

we need not consider hardship to the parties. See OwnerOperator Independent Drivers Ass’n v. Fed. Motor Carrier 

Safety Admin., 656 F.3d 580, 586 (citing Sabre, Inc. v. Dep't 

of Transp., 429 F.3d 1113, 1119 (D.C. Cir. 2005)). 

Moreover, certain parties to this appeal have expressed in 

concrete terms that delay in our assessment of the Rule’s 

validity constitutes a potentially grievous hardship for 

purposes of business planning and places them in a “very real 

dilemma.” Abbott Labs, 387 U.S. at 153. 
25

On September 7, 2011, Appellants initiated the present 

action in the United States District Court for the Western 

District of Louisiana challenging the validity of the 2011 

Wage Rule on the grounds that it was promulgated in 

violation of both the APA and the Regulatory Flexibility Act 

(“RFA”), 5 U.S.C. §§ 601 et seq.11 Appellants requested both 

declaratory and injunctive relief. The CATA plaintiffsIntervenors subsequently filed an unopposed motion to 

intervene based on principles of comity. On December 13, 

2011, the District Court “issued an order transferring venue 

and denying, without prejudice, the [Appellants’] motion for 

a preliminary injunction.” See La. Forestry Ass’n v. Solis, 

814 F. Supp. 2d 655, 665 (W.D. La. 2011). 

Upon transfer to the District Court for the Eastern 

District of Pennsylvania, the parties filed cross-motions for 

summary judgment. Appellants presented two primary 

challenges to the 2011 Rule: first, that the DOL lacks 

authority to promulgate legislative rules concerning the H-2B 

program, and second, that even if the DOL has such 

rulemaking authority, the DOL’s violation of certain 

procedural requirements of the APA and RFA invalidates the 

Rule entirely. 

On August 20, 2012, the District Court issued a 

decision and order granting the defendants’ motion for 

summary judgment.12 See La. Forestry Ass’n v. Solis, 889 F. 

 

11

 Appellants also challenged the DOL’s acceleration 

of the effective date of the 2011 Wage Rule from January 1, 

2012 to September 30, 2011. The DOL’s later postponement 

of the effective date mooted those claims.

12

 The District Court heard oral argument on June 28, 

2012, at which time the parties expressed doubt that the 
26

Supp. 2d 711 (E.D. Pa. 2012). The District Court first 

rejected Appellants’ arguments regarding the DOL’s 

rulemaking authority, beginning with Appellants’ contention 

that the DHS unlawfully conditioned “its own granting of H2B visas on the receipt of labor certifications from the DOL” 

pursuant to 8 C.F.R. § 214.2(h)(6)(iii)(A). Id. at 722. 

Instead, the District Court determined that:

It was eminently reasonable for 

the DHS to do so because the 

DOL is uniquely qualified to 

provide advice about the potential 

effects of H-2B workers’ 

employment on United States 

workers, and because the DOL 

has been charged for decades with 

the responsibility of issuing labor 

certifications to employers 

seeking to hire temporary foreign 

workers. 

Id. at 724. The District Court thus found that the DHS 

decision to adopt the DOL labor certification was entitled to 

deference under Chevron, U.S.A., Inc. v. Natural Resources 

Defense Council, Inc., 467 U.S. 837 (1984). Id. at 723–25. 

The District Court also noted that it “would have come to the 

same conclusion even under a less deferential, Skidmore-type 

standard of review.” Id. at 725 (citing Skidmore v. Swift & 

Co., 323 U.S. 134 (1944)).

 

dispute over the 2011 Rule’s validity would be resolved by 

congressional action, i.e., funding for implementation of the 

Rule.
27

The District Court then dismissed the argument that 

the DHS “improperly ‘offloaded’ some of its jurisdiction to 

the DOL by making the DOL a ‘co-determiner’ of H-2B visa 

petitions.” Id. at 725. The District Court explained:

DHS takes the DOL’s advice on 

the labor certification question 

because DHS understands that the 

DOL has unrivaled expertise in 

this particular field. But it is still 

just a “consultation,” which the 

INA expressly permits. 

This conclusion is bolstered by 

review of other cases in which an 

administrative agency has 

conditioned the exercise of its 

own authority on the decision of 

another entity.

Id. at 725–26 (citing U.S. Telecom Ass’n v. FCC, 359 F.3d 

554, 567 (D.C. Cir. 2004)). The District Court likewise 

rejected the contention that “in enacting the INA, Congress 

unlawfully delegated its legislative power to the DOL by 

failing to lay down an ‘intelligible principle’ that 

‘meaningfully constrains’ DOL’s discretion.” Id. at 726–27.

Citing the history of the H-2B program, the statutory text of 

the INA, and the policy goals at issue, the District Court 

concluded that the INA, as amended by IRCA, confers 
28

implied rulemaking authority on the DOL,13 and the DOL had 

not exceeded the scope of that authority in issuing the 2011 

Wage Rule. Id. at 728–30. Instead, “[t]he agencies’ 

interpretation of 8 C.F.R. § 214.2(h)(6)(iii) [as conferring 

rulemaking authority on the DOL] is not plainly erroneous or 

inconsistent with the regulation” and “comports with the 

judicial preference for filling the interstices of the law 

through quasi-legislative enactment of rules of general 

applicability.” Id. at 730. Lastly, the District Court rejected 

Appellants’ claims that the DOL violated the APA and RFA 

when it promulgated the 2011 Wage Rule. See id. at 732–38.

II.

The District Court had jurisdiction pursuant to 28 

U.S.C. § 1331 and 5 U.S.C. §§ 611(a) and 704, and we have 

appellate jurisdiction under 28 U.S.C. § 1291. We review a 

district court’s grant of summary judgment in a case brought 

under the APA de novo, “apply[ing] the applicable standard 

of review to the underlying agency decision.” Cyberworld 

Enter. Techs., Inc. v. Napolitano, 602 F.3d 189, 195–96 (3d 

Cir. 2010). Under the APA, we must set aside an agency 

action that is “arbitrary, capricious, an abuse of discretion, or 

otherwise not in accordance with law”; “in excess of statutory 

jurisdiction, authority, or limitations, or short of statutory 

right”; or “without observance of procedure required by law.” 

5 U.S.C. § 706(2)(A), (C)–(D). Appellants challenge both the 

DOL’s general rulemaking authority in the context of the H2B program, as well as its compliance with the requirements 

 

13

 The DOL conceded that it lacks express statutory 

authority to engage in such rulemaking. See La. Forestry 

Ass’n, 889 F. Supp. 2d at 728.
29

of the APA and the INA in promulgating the 2011 Wage 

Rule.

A.

We turn first to Appellants’ claim that there exists no 

legal basis—statutory or otherwise—upon which the DOL 

may predicate its rulemaking concerning the H-2B program.14 

Appellants contend that the DHS unlawfully subdelegated its 

authority over the H-2B program to the DOL, and thus the 

District Court erred when it rejected this argument and found 

that the DHS lawfully conditioned its granting of H-2B visa 

petitions on labor certifications from the DOL. According to 

the Departments, on the other hand, the DOL does not seek to 

justify its rulemaking in the H-2B context pursuant to a 

delegation theory. Rather, the Departments assert that the 

DOL has authority to promulgate rules concerning the H-2B 

program because the DHS lawfully conditioned its granting 

of H-2B petitions on obtaining a labor certification from the

DOL and permissibly endowed the DOL limited rulemaking 

 

14

 The Departments contend that Appellants never 

argued that the DOL lacks statutory authority to issue rules 

concerning the H-2B program during the administrative 

rulemaking proceedings, and thus the argument should be 

deemed waived for failure to exhaust administrative 

remedies. We disagree. Even if Appellants failed to 

challenge the DOL’s rulemaking authority on this ground 

during the administrative rulemaking process, the claim is not 

waived. “[E]xhaustion of administrative remedies is not 

required when the issue involves only statutory construction, 

because there is no need for the administrative agency to 

develop a factual record or apply its expertise.” Bradshaw v. 

Carlson, 682 F.3d 1050, 1052 (3d Cir. 1981). 
30

authority to carry out its charge of issuing certifications. For 

the reasons set forth below, we find that the DOL has 

authority to promulgate rules concerning the temporary labor 

certification process in the context of the H-2B program, and 

that the 2011 Wage Rule was validly promulgated pursuant to 

that authority. This authority derives from regulation 

214.2(h)(6)(iii), which was promulgated pursuant to the 

DHS’s authority under sections 1101(a)(15)(H)(ii)(b) and 

1184(c) of the INA to administer the nation’s immigration 

laws, generally, and the H-2B program, specifically. See 6

U.S.C. §§ 202, 271(b); 8 U.S.C. § 1184(c).

1.

As an initial matter, we must resolve the parties’ 

dispute as to whether the DHS’s interpretation of the INA as 

permitting it to require H-2B petitioners to first obtain a 

temporary labor certification from the DOL is entitled to 

Chevron deference. Appellants argue that the DHS’s 

interpretation of the governing statutory provisions is not 

entitled to deference under Chevron because the statutes—

and particularly section 1184(c)—do not contain ambiguous 

language. The Departments and Intervenors, on the other 

hand, contend that Chevron deference is warranted because 

“Congress left a gap for DHS to fill when it charged DHS to 

consult with appropriate agencies,” and the “DHS’ 

interpretation of the gap as requiring a labor certification from 

the DOL is reasonable.” Intervenors’ Br. at 37.

“[A]dministrative implementation of a particular 

statutory provision qualifies for Chevron deference when it 

appears that Congress delegated authority to the agency 

generally to make rules carrying the force of law, and that the 

agency interpretation claiming deference was promulgated in 
31

the exercise of that authority.” United States v. Mead Corp., 

533 U.S. 218, 226-27 (2001). Here, Congress endowed the 

DHS with general authority to administer the nation’s 

immigration laws. See 6 U.S.C. § 202. With regard to the H2B program, Congress has specifically delegated to DHS the 

authority to “prescribe” by regulation the conditions under 

which aliens may be admitted to the United States, and the 

authority to “determine[]” H-2B petitions “after consultation 

with appropriate agencies of the Government.” 8 U.S.C. § 

1184(a), (c)(1). Acting pursuant to this statutory authority, 

DHS has issued regulations of its own requiring employers 

seeking to admit workers under the H-2B program to first 

“apply for a temporary labor certification with the Secretary 

of Labor,” which certification “shall be advice to the director 

[of DHS] on whether or not United States workers capable of 

performing the temporary services or labor are available and 

whether or not the alien’s employment will adversely affect 

the wages and working conditions of similarly employed 

United States workers.” 8 C.F.R. § 214.2(h)(6)(iii)(A). Thus, 

because “there is adequate indication of congressional intent 

in the statute to demonstrate substantial delegation of 

authority to the [DHS],” Robert Wood Johnson Univ. Hosp. v. 

Thompson, 297 F.3d 273, 281 (3d Cir. 2002), and because the 

DHS promulgated regulation 214.2 pursuant to that authority, 

“Chevron and its progeny provide the applicable standard of 

review.” Pub. Citizen, Inc. v. FAA, 988 F.2d 186, 191 (D.C. 

Cir. 1993).

2.

“Chevron established a familiar two-step procedure for 

evaluating whether an agency's interpretation of a statute is 

lawful.” Nat’l Cable & Telecomms. Ass’n v. Brand X Internet 

Servs., 545 U.S. 967, 986 (2005). The Supreme Court has 
32

instructed that “[a]t the first step, we ask whether the statute’s 

plain terms ‘directly addres[s] the precise question at issue.’” 

Id. (quoting Chevron, 467 U.S. at 843). “If the statute is 

ambiguous on the point, we defer at step two to the agency's 

interpretation so long as the construction is ‘a reasonable 

policy choice for the agency to make.’” Id. (quoting 

Chevron, 467 U.S. at 845).

a.

At the first step, the Supreme Court has instructed that 

we must consider not only the plain language of the statute, 

but also, through “traditional tools of statutory construction,” 

whether “Congress had an intention on the precise question at 

issue.” Chevron, 467 U.S. at 843 n.9. Section 1184(c) is 

silent as to the identity of the agencies with which the DHS 

may consult in fulfilling its charge to “determine[] . . . [t]he 

question of importing any alien as a nonimmigrant under [the 

H-2B program].” 8 U.S.C. § 1184(c)(1). The statute likewise 

does not “directly addres[s] the precise question” of what 

constitutes permissible consultation. Nat’l Cable, 545 U.S. 

at 986 (quoting Chevron, 467 U.S. at 843); see 8 U.S.C. § 

1101 (prescribing definitions for the INA and providing no 

definition for “consultation”). We observe that, unlike in the 

context of the H-2A program, Congress did not specify the 

agency or agencies with which the DHS should consult in 

determining H-2B petitions. Compare 8 U.S.C. § 

1101(a)(15)(H)(ii)(a), with id. § 1101(a)(15)(H)(ii)(b); see 

also id. § 1184(c)(1). “[T]hat silence suggests . . . that the 

[DHS] has the discretion to fill the consequent statutory gap.” 

Nat’l Cable, 546 U.S. at 997. We cannot glean any more 

understanding of Congress’ intention with respect to either 

question from the plain language of the statute read through 

“traditional tools of statutory construction.” Chevron, 467 
33

U.S. at 843 n.9; see United States v. Geiser, 527 F.3d 288, 

293 (3d Cir. 2008) (“[W]e no longer find it necessary to 

consider legislative history at Chevron step one.”). 

Accordingly, we conclude that the first step of the Chevron 

inquiry is satisfied.

b.

We next consider whether the DHS’s construction of 

the INA is permissible, that is, whether it was “‘a reasonable 

policy choice for the agency to make.’” Nat’l Cable, 545 

U.S. at 986 (quoting Chevron, 467 U.S. at 845). We find that 

it is.

We begin with Appellants’ contention that the DHS 

impermissibly interpreted the INA as allowing it to 

subdelegate its authority to administer the H-2B program to 

the DOL. The precise question presented by this case is one 

of subdelegation, i.e., the transfer of authority from an agency 

endowed with authority pursuant to congressional enactment 

to entities within or outside of the agency itself. As a general

rule, “[w]hen a statute delegates authority to a federal officer 

or agency, subdelegation to a subordinate federal officer or 

agency is presumptively permissible absent affirmative 

evidence of a contrary congressional intent.” U.S. Telecom 

Ass’n, 359 F.3d at 565. Our sister Courts of Appeals have 

recognized, however, “an important distinction between 

subdelegation to a subordinate and subdelegation to an 

outside party,” finding that “subdelegations to outside parties 

are assumed to be improper absent an affirmative showing of 

congressional authorization.”15 Id.; see also Fund for 

 

15

 Although the case law strongly suggests that the 

presumption of authority to subdelegate is inapplicable where 
34

Animals v. Kempthorne, 538 F.3d 124, 132 (2d Cir. 2008)

(“We agree with the D.C. Circuit that, absent statutory 

authorization, such delegation is impermissible.”).16 Under 

this line of reasoning, then, a subdelegation of authority from 

the DHS to the DOL—an outside, non-subordinate agency—

would be impermissible absent a clear statement from 

Congress authorizing such.

But the prohibition against subdelegation to an outside 

entity in the absence of express congressional authorization is 

applicable only if an agency actually delegated its power in 

the first place. Thus, as a threshold matter, we must 

determine whether any delegation occurred at all. “An 

agency delegates its authority when it shifts to another party 

almost the entire determination of whether a specific statutory 

requirement . . . has been satisfied, or where the agency 

abdicates its final reviewing authority.” Kempthorne, 538 

F.3d at 133 (citations and internal quotation marks omitted). 

 

an agency has attempted to delegate to a non-subordinate or 

outside entity, we need not decide this question today 

because, as discussed infra, the DHS’s actions were not, by 

definition, a delegation of authority. 

16

 As the D.C. Circuit has succinctly explained, 

“subdelegation to outside entities aggravates the risk of policy 

drift inherent in any principal-agent relationship” by blurring 

“lines of accountability”; “undermining an important 

democratic check on government decision-making”; and 

“increas[ing] the risk that these parties will not share the 

agency’s national vision and perspective.” U.S. Telecom 

Ass’n, 359 F.3d at 565–66 (internal quotation marks omitted). 
35

In the case at bar, the authority delegated by Congress to the 

DHS under the INA “bears little resemblance to the far 

narrower band of discretion afforded to” the DOL under 

regulation 214.2. Id. The INA provides for the admission of 

aliens who have no intention of abandoning their foreign 

residence and intend to enter the United States to perform 

temporary work “if unemployed persons capable of 

performing such service or labor cannot be found in this 

country . . . .” 8 U.S.C. § 1101(a)(15(H)(ii)(b). Congress has 

charged the DHS with administering the INA and 

“determin[ing] . . . [t]he question of importing any alien as a 

nonimmigrant under [the H2-B program] . . . after 

consultation with appropriate agencies of the Government, 

upon petition of the importing employer.” Id. § 1184(a), 

(c)(1). Regulation 214.2, by contrast, requires employers 

seeking to admit workers under the H-2B program to first 

“apply for a temporary labor certification with the Secretary 

of Labor,” which “certification shall be advice to the director 

[of the DHS] on whether or not United States workers 

capable of performing the temporary services or labor are 

available and whether or not the alien’s employment will 

adversely affect the wages and working conditions of 

similarly employed United States workers.” 8 C.F.R. § 

214.2(h)(6)(iii)(A). Although the DHS’s decision to grant an 

H-2B petition depends, in part, on whether or not the DOL 

issues a temporary labor certification to the petitioneremployer, it is the DHS—not the DOL—that must determine 

whether the other criteria for an H-2B visa have been 

satisfied. For example, even if the DOL issues an employer a 

temporary labor certification, the DHS must still determine 

whether the alien intends to remain in the United States on a 

temporary basis and not abandon his or her foreign residence. 

See 8 U.S.C. § 101(a)(15)(H)(ii)(b); 2008 Wage Rule, 73 Fed. 
36

Reg. at 78, 115 (explaining that after the DOL issues a 

temporary labor certification, “DHS reviews all of the 

necessary documentation that is required to be submitted with 

the petition,” and “may examine elements that are presented 

not only on the petition, but on the temporary labor 

certification as well for consistency such as stated wages, the 

nature of the job offered, the location, and other factors 

common to both petition and temporary labor certification”). 

Moreover, it is ultimately within the DHS’s discretion to 

grant or deny H-2B visa petitions after assessing whether the 

above-described requirements have been satisfied. See 8 

U.S.C. § 1184(c)(1); see also 2008 Wage Rule, 73 Fed. Reg. 

at 78,115 (“While DHS will not go into the merits of the 

determination previously made by DOL, DHS is responsible 

for ensuring the integrity of the H-2B program, that the facts 

presented in the entire petition package are true and 

verifiable.”). 

Regulation 214.2 therefore does not effect a delegation 

of authority, but instead provides for a type of “legitimate 

outside party input into agency decision-making processes.” 

U.S. Telecom Ass’n, 359 F.3d at 566. Our sister Courts of 

Appeals have recognized three such types of permissible 

assistance: “(1) establishing a reasonable condition for 

granting federal approval; (2) fact gathering; and (3) advice 

giving.” Id. The scheme established under regulation 214.2 

fits the first of these models. By adopting a rule that requires 

H-2B employers to first obtain a temporary labor certification 

from the DOL on the questions of whether there are U.S. 

workers capable of performing the job in question and the 

impact of the aliens’ employment on U.S. workers, and 

giving the DOL discretion to issue a limited set of rules 

governing the certification process, the DHS was exercising 
37

its broad authority to “determine” the specific “question of 

importing any alien” under the H-2B visa program. 8 U.S.C. 

§1184(a), (c). The DHS thus did not impermissibly 

subdelegate all of its authority in this area. Rather, the DHS 

conditioned its own granting of an H-2B petition on the 

DOL’s grant of a temporary labor certification. 

Where Congress has entrusted a federal agency with 

broad discretion to permit or forbid certain activities, we will 

uphold the agency’s conditioning of its “grant of permission 

on the decision of another entity, such as a state, local, or 

tribal government, so long as there is a reasonable connection 

between the outside agency’s decision and the federal 

agency’s determination.” U.S. Telecom Ass’n, 359 F.3d at 

567. Here, Congress has charged the DHS with determining 

whether or not to grant H-2B visa petitions. See 8 U.S.C. §§ 

1101(a)(15)(H)(ii)(b), 1184(c). As part of that determination, 

the DHS must consider whether there are United States 

citizens willing to perform the job for which an H-2B visa is 

sought. See id. § 1101(a)(15)(H)(ii)(b). The DHS has been 

further instructed pursuant to section 1184(c) of the INA to 

“consult[]” with “appropriate agencies of the Government” in 

making H-2B visa determinations. Id. § 1184(c)(1). The 

INA does not define what constitutes “consultation,” nor does 

it specify the agencies with which the DHS may (or may not) 

consult in administering the H-2B program. See id. §§ 1101, 

1184(c)(1).

We find that there is a “reasonable connection” 

between the DHS’s determination of H-2B petitions and the 

DOL’s decisions on temporary labor certifications in light of 

the statute’s silence as to what constitutes permissible 

“consultation” and the specific agencies with which the DHS 

may consult in making H-2B visa determinations. U.S. 
38

Telecom Ass’n, 359 F.3d at 567. This is especially so in 

consideration of the DOL’s institutional expertise in labor and 

employment matters, as well as the Department’s history of 

rulemaking authority in the context of the H-2B program. 

The DOL has been involved in the administration of the 

nation’s immigration laws since its inception in 1913, and for 

the past six decades, has provided temporary labor 

certifications in some form to the government agency charged 

with administering the nation’s immigration laws concerning 

admission of temporary non-agricultural workers. See La. 

Forestry Ass’n, 889 F. Supp. 2d at 716 n.2. Beginning in the 

1960s, the DOL provided certifications to INS at INS’s 

request. See 31 Fed. Reg. at 4,446 (INS regulation requiring 

H-2B petitioners to first obtain a “certification from the 

Secretary of Labor . . . stating that qualified persons in the 

United States are not available . . . .”); 31 Fed. Reg. at 11,744 

(same); 33 Fed. Reg. at 7,570 (1968 DOL regulation 

governing the certification process); 43 Fed. Reg. at 10,306 

(1978 regulation concerning the same); Gen. Admin. Ltr., No. 

4-95; Gen. Admin. Ltr., No. 2-98. In 2002, when authority to 

administer the INA was transferred to the DHS, the DOL 

continued its role of providing temporary labor certifications 

and advice about the availability of U.S. workers for H-2B 

jobs and the effect of H-2B workers’ employment on U.S. 

workers’ wages. See La. Forestry Ass’n, 889 F. Supp. 2d at 

717; 2008 Wage Rule, 73 Fed. Reg. at 78,020. 

It was likewise reasonable for the DHS to adopt a 

regulatory provision allowing the DOL to promulgate a 

narrow class of rules governing the temporary labor 

certification process. Without the ability to establish 

procedures to administer the temporary labor certification 

process, the DOL would not be able to fulfill the consulting 
39

role defined by DHS’s charge to the DOL to issue temporary 

labor certifications. The DHS afforded DOL only as much 

rulemaking authority as needed to carry out its consultative 

role by issuing temporary labor certifications. Furthermore, 

as noted above, the DOL has institutional expertise in matters 

concerning U.S. employment, and a long and extensive 

history of issuing temporary labor certifications for nonagricultural jobs and making limited rules to structure the 

issuance of such certifications. Thus, there is a “reasonable 

connection” between the DOL’s limited rulemaking authority 

and the DHS’s determination of H-2B visa petitions. U.S. 

Telecom. Ass’n, 359 F.3d at 567. 

We further note that Congress is and has been aware of 

the DOL’s involvement in the administration of the H-2B visa 

program for several decades, and yet, despite several 

opportunities to do so, has never amended the INA to prohibit 

the DOL’s involvement in the H-2B program or to specify 

which agencies are the “appropriate” ones with which the 

DHS may consult in exercising its authority to grant or deny 

H-2B visas. For example, when it bifurcated the H-2 

program to create the H-2A and H-2B programs, Congress 

specifically named the DOL as the agency with which the 

DHS must consult in administering the H-2A program. See

IRCA § 301(b) (“8 U.S.C. § 1184(c) is amended by adding at 

the end of the following: ‘For purposes of this subsection 

with respect to nonimmigrants described in section 

101(a)(14)(H)(ii)(a), the term ‘appropriate agencies of 

Government’ means the Department of Labor . . . .’”). 

However, Congress was silent as to which agencies, 

specifically, the DHS may “consult[]” with in its 

administration of the H-2B program, choosing broad

language—“appropriate agencies,” 8 U.S.C. § 1184(c)—and 
40

thus affording the DHS greater discretion with respect to the 

agencies with which it may consult concerning the H-2B 

program. See Addison v. Holly Hill Fruit Products, 322 U.S. 

607, 616 (1944) (“[W]hen Congress wants to give wide 

discretion it uses broad language.”).

Nor did Congress enact any changes to the H-2B 

program after the Supreme Court’s decision in Alfred L. 

Snapp & Son, Inc., v. Puerto Rico, 458 U.S. 592 (1982), 

where the Court recognized that the DOL promulgates rules 

concerning the H-2B program, despite enacting amendments 

to the INA in both 2005 and 2011. “The normal rule of 

statutory construction is that if Congress intends for 

legislation to change the interpretation of a judicially created 

concept, it makes that intent specific.” Midatlantic Nat’l 

Bank v. N.J. Dep’t of Envtl. Prot., 474 U.S. 494, 501 (1986). 

If, in fact, Congress did not intend to allow the DHS to 

consult with the DOL in this manner when it enacted section 

1184(c)(1), then Congress may amend the INA accordingly. 

Where, however, an agency reasonably construes a statute 

endowing it with broad authority, we must defer to that 

interpretation, and “the remedy, if any is indicated, is for 

congressional, and not judicial, action.” Flood v. Kuhn, 407 

U.S. 258, 285 (1972). 

We thus reject Appellants’ contention that the 2011 

Wage Rule was promulgated pursuant to an unlawful 

subdelegation of the DHS’s authority to administer the H-2B 

program. We hold, instead, that the 2011 Wage Rule was 

issued pursuant to the DHS’s permissible “conditioning” of 

the grant of H-2B petitions on the advice of the DOL pursuant 

to the DHS’s charge from Congress to “determine[]” H-2B 

visa petitions “after consultation with appropriate agencies of 

the Government.” 8 U.S.C. § 1184(c)(1). Because we find 
41

that the 2011 Wage Rule was promulgated pursuant to a 

permissible conditioning of the DHS’s granting of H-2B 

petitions on a decision by the DOL and the limited 

rulemaking authority the DOL has to carry out that charge, 

we need not decide today whether, as the Departments 

contend and Appellants vigorously contest, the DOL has 

express or implied statutory authority under the WPA or INA 

to promulgate rules concerning the H-2B program. See 

Taylor v. Peoples Natural Gas Co., 49 F.3d 982, 992 (3d Cir. 

1995) (“It is well settled law that in general [c]ases are to be 

decided on the narrowest legal grounds available, and relief is 

to be tailored carefully to the nature of the dispute before the 

court.”) (quotation marks omitted). We leave that question, 

which remains open in this Circuit, for another day, and hold 

only that the 2011 Wage Rule was lawfully promulgated 

pursuant to a reasonable interpretation of a statutory provision 

charging the DHS with administration of the H-2B program. 

See 8 U.S.C. § 1184. Our decision is completed by the 

principles of deference governing our review on appeal.

17

 See 

 

17

 We acknowledge that the decision we reach today is 

a difficult one, especially because the result we reach may 

potentially create a split between our Court and the Eleventh 

Circuit. In a recent review of a preliminary injunction of the 

2011 Wage Rule, the Eleventh Circuit rejected the DOL’s 

argument that it has rulemaking authority in the context of the 

H-2B program pursuant to a lawful conditioning by DHS of 

its authority to grant or deny H-2B visa petitions. See Bayou 

Lawn & Landscape Servs. v. Sec. of Labor, 713 F.3d 1080 

(11th Cir. 2013).

Our decision in this case is “influence[d] by the policy 

consideration that circuit splits, especially in the circumstance 
42

 

of this case in which national uniformity of a single rule is of 

vital importance, are to be avoided.” Sam L. Majors Jewelers 

v. ABX, Inc., 117 F.3d 922, 929 n.16 (5th Cir. 1997). We thus 

emphasize that under the governing standards of review, and 

in consideration of the important principles of separation of 

powers that guide our review of agency action, we feel bound 

to defer to the DHS’s interpretation of the statutes under 

which Congress has authorized it to administer the H-2B 

program. See Chevron, 467 U.S. at 845. We reiterate that 

should Congress disagree with this construction of the INA, 

Congress may take action to amend the statute accordingly. 

We further note that the procedural posture of Bayou—an 

appeal from the grant of a preliminary injunction, rather than 

from a final judgment—means that the Bayou Court’s 

decision is not the final word from the Eleventh Circuit on the 

question of the DOL’s general rulemaking authority. The 

three-member panel in Bayou opined only on whether the 

District Court abused its discretion in finding that the 

employer-plaintiffs were likely to succeed on the merits of 

their challenge to the DOL’s rulemaking authority, not on

whether the DOL actually has that authority or not. See 

Bayou, 713 F.3d at 1085; Pitt News v. Pappert, 379 F.3d 96, 

104 (3d Cir. 2004) (“[I]t is well established that . . . a panel 

hearing an appeal from the entry of a final judgment [is not 

required] to follow the legal analysis contained in a prior 

panel decision addressing the question of whether a party that 

moved for preliminary injunctive relief showed a likelihood 

of success on the merits.”). A circuit split is thus not yet a 

foregone conclusion. 

 
43

Linmark Assocs., Inc. v. Willingboro Twp., 431 U.S. 85, 98 

(1977). 

B.

Having determined that the DOL has authority to 

engage in rulemaking concerning the H-2B program, we turn 

to Appellants’ argument that even if the DOL has general 

rulemaking authority, it exceeded that authority when issuing 

the 2011 Wage Rule. Appellants present several procedural 

and substantive challenges under the APA and INA, 

respectively. We address each in turn.

1.

The 2011 Wage Rule was promulgated pursuant to the 

informal rulemaking procedures of section 553 of the APA. 

See 5 U.S.C. § 553. “The agency’s action in promulgating 

such standards therefore may be set aside if found to be 

‘arbitrary, capricious, an abuse of discretion, or otherwise not 

in accordance with law.’” Motor Vehicle Mfrs. Ass’n of U.S., 

Inc. v. State Farm. Mut. Auto. Ins. Co., 463 U.S. 29, 41 

(1983) (quoting 5 U.S.C. § 706(2)(A)). “A court may 

conclude that a regulation is arbitrary and capricious only if 

the agency relied on facts other than those intended by 

Congress, did not consider an important aspect of the issue 

confronting the agency, provided an explanation for its 

decision which runs counter to the evidence before the 

agency, or is entirely implausible.” Gardner v. Grandolsky, 

585 F.3d 786, 790 (3d Cir. 2009) (quotation marks omitted). 

Although our “inquiry into the facts is to be searching and 

careful, the ultimate standard of review is a narrow one.” 

Citizens to Pres. Overton Park v. Volpe, 401 U.S. 402, 416 
44

(1971). We are “not empowered to substitute [our] judgment 

for that of the agency.” Id.

a.

Appellants first argue that the DOL failed to comply 

with section 553 of the APA, which requires that an agency 

publish general notice of a proposed rule in the Federal 

Register and include in that notice “reference to the legal 

authority under which the rule is proposed,” and “either the 

terms or substance of the proposed rule or a description of the 

subjects and issues involved.” 5 U.S.C. § 553(b)(2)&(3). 

The purpose of “[s]ection 553 [is] . . . to give the public an 

opportunity to participate in the rulemaking process,” and to 

“enable[] the agency promulgating the rule to educate itself 

before establishing rules and procedures which have a 

substantial impact on those regulated.” Am. Iron & Steel Inst. 

v. EPA, 568 F.2d 284, 291 (3d Cir. 1977). Thus, in 

evaluating an argument that an agency failed to satisfy the 

requirements of section 553, we ultimately “must determine 

whether the notice given was sufficient to fairly apprise 

interested parties of all significant subjects and issues 

involved.” Id. (quotation marks omitted).

We disagree with Appellants that the DOL failed to 

adequately explain the legal basis for, or purpose of, the 2011 

Wage Rule. The DOL expressly identified 8 C.F.R. § 

214.2(h)(6) as “the legal basis for the proposed rule” in a 

section of the NPRM entitled “Succinct Statement of the 

Objectives of, and Legal Basis for, the Proposed Rule.” 

Proposed 2011 Wage Rule, 75 Fed. Reg. at 61,584. 

Furthermore, as the District Court correctly observed, the 

DOL also identified sections 1101(a)(15)(H)(ii)(B) and 

1184(c)(1) of the INA as bases for its authority to issue the 
45

2011 Wage Rule.18 In the NPRM, the DOL explained that the 

DHS is charged with administering the H-2B program 

pursuant to section 1101(a)(15)(H)(ii)(b) of the INA, and that 

[s]ection 214(c)(1) of the INA 

requires DHS to consult with 

appropriate agencies before 

approving an H-2B visa petition. 

The regulations [8 C.F.R. § 

214.2(h)(6)] for U.S. Citizenship 

and Immigration Services 

(USCIS), the agency within DHS 

which adjudicates requests for H2B status, require that an 

intending employer first apply for 

a temporary labor certification 

from the Secretary of Labor.

Id. at 61,578. The DOL also thoroughly explained the need 

for the 2011 Wage Rule and identified the purpose of the 

Rule. In a subsection entitled “The Need for New 

Rulemaking,” the DOL explained: 

[T]he Department ha[d] grown 

increasingly concerned that the 

current calculation method does 

 

18

 The fact that the DOL identified these provisions of 

the INA as bases for the 2011 Wage Rule in a separate 

section of the NPRM from that in which it cited regulation 

214.2 is of no import, as “[t]he APA does not require that the 

proposed rule cite the relevant legal authority in a certain 

location.” United States v. Stevenson, 676 F.3d 557, 563 (6th 

Cir. 2012). 
46

not adequately reflect the 

appropriate wage necessary to 

ensure U.S. workers are not 

adversely affected by the 

employment of H-2b workers. 

Additionally, the prevailing wage 

calculation methodology became 

the subject of litigation. . . . 

Accordingly, in order to comply 

with the Court’s order and to 

appropriately establish a wage 

methodology that adequately 

protects U.S. and H-2B workers, 

the Department is engaging in this 

new rulemaking . . . .

Id. at 61,579; see also 75 Fed. Reg. at 61,584 (subsection 

entitled “Description of the Reasons That Action by the 

Agency Is Being Considered”). These statements “would 

fairly apprise interested persons of the subjects and issues 

before the [DOL],” and, more specifically, of the legal basis 

and purpose of the proposed rule. Am. Iron & Steel Inst., 568 

F.2d at 293. Accordingly, we agree with the District Court 

that the DOL “provided sufficiently detailed notice to the 

public of the DOL’s authority” as required by section 553(b). 

La. Forestry Ass’n, 889 F. Supp. 2d at 732. 

b.

Appellants next argue that the DOL failed to consider 

employer interests or hardship and improperly established 

wages to attract U.S. workers in promulgating the 2011 Wage 

Rule. Appellants further contend that the DOL failed to 

provide an adequate “reasoned analysis” in support of the 
47

Rule. Appellants’ Br. at 65. Failure to consider relevant 

factors or provide an adequate explanation for an agency 

action are indeed among the “wide range of reasons why 

agency action may be judicially branded as ‘arbitrary and 

capricious.’” FEC v. Rose, 806 F.2d 1081, 1088 (D.C. Cir. 

1986). We find, however, that the DOL satisfied both of 

these requirements, “neither [of which] is particularly 

demanding.” Pub. Citizen, 988 F.2d at 197. 

First, as to the requirement that an agency consider 

factors relevant to the rule in question, the APA requires only 

that an agency “demonstrate that it has considered the 

relevant factors brought to its attention by interested parties 

during the course of the rulemaking, and that it has made a 

reasoned choice among the various alternatives presented.” 

Nat’l Indus. Sand Ass’n v. Marshall, 601 F.2d 689, 700 (3d 

Cir. 1979). The DOL did so in this case. With respect to 

employer interests and hardship, the DOL considered the 

effect of the 2011 Wage Rule’s wage methodology on 

employers, namely, that it would potentially result in 

employers experiencing higher-than-anticipated labor costs. 

See 2011 Wage Rule, 76 Fed. Reg. at 3,462. Directly in 

response to comments expressing concern that “the 

Department did not take into account contracts employers 

have already put in place for the coming year,” the DOL 

concluded that “[t]he fact that a new wage methodology may 

result in wages in excess of anticipated labor costs does not 

minimize the Department’s obligation” to provide for 

calculation of a prevailing wage rate that does not have an 

adverse impact on the wages of similarly-employed U.S. 

workers. Id. In any event, the DOL is not required to 

consider employer hardship under the statutory and regulatory 

framework from which its authority to issue labor 
48

certifications derives. The DOL must, instead, balance the 

interests of “assur[ing] an adequate labor force on the one 

hand and . . . protect[ing] the jobs of citizens on the other.”19 

Rogers, 563 F.2d at 626; see 8 U.S.C. § 

1101(a)(15)(H)(ii)(b); 8 C.F.R. § 214.2(h)(6)(iii)(A); see also 

Snapp, 458 U.S. at 596. The DOL satisfied its obligations 

under the APA by “respond[ing] to relevant and significant 

public comments” concerning factors relevant to the 2011 

Wage Rule and “adequately explaining its result.” Pub. 

Citizen, 988 F.2d at 197. 

We likewise reject Appellants’ argument that the DOL 

improperly established wage rates in order to attract U.S. 

workers—a factor Appellants claim the DOL was prohibited 

from considering in promulgating the 2011 Wage Rule. 

According to Appellants, in the NPRM and notice 

accompanying the final rule, the DOL “discussed the effect of 

higher wage rates on employers’ ability to attract U.S. 

workers,” a “factor that Congress and the [DHS] precluded 

from consideration.” Appellants’ Br. at 60–61. We cannot 

agree. The INA and DHS regulatory provisions governing 

the DOL’s issuance of labor certifications require the DOL to 

consider, in issuing a temporary labor certification, whether 

H-2B alien workers’ employment “will adversely affect the 

 

19

 Indeed, the District Court in the CATA litigation 

expressly found that the DOL was prohibited from 

considering employer hardship in setting the prevailing wage 

rate. See CATA II, 2011 WL 2414555, at *4. One may well 

question that conclusion, since an employer's hardship can 

certainly be relevant to the goal of protecting citizens' jobs, 

but that issue is not before us in this appeal and we thus 

express no further comment on the propriety of that holding. 
49

wages and working conditions of similarly employed United 

States workers,” 8 C.F.R. 214.2(h)(6)(iii), a requirement that 

derives from the DHS’s charge from Congress to consider 

whether H-2B workers will have an “adverse effect” on U.S. 

workers. 8 U.S.C. §§ 1101(a)(15)(H)(ii)(b), 1184(c)(1). The 

DOL’s statements concerning the proposed methodology’s 

potential to “attract” U.S. workers to which Appellants object 

were made in the course of its discussion of whether the 

proposed wage methodology would “adversely affect[] the 

wages of U.S. workers in those same jobs,” and in the 

Department’s economic analysis of the effect of the Rule—an 

analysis required by Executive Order 12866. See Proposed 

2011 Wage Rule, 75 Fed. Reg. 61,581 n.3; 2011 Wage Rule, 

76 Fed. Reg. at 3,454; 75 Fed. Reg. at 61,583; 76 Fed. Reg. 

3,470. Thus it was neither arbitrary nor capricious for the 

DOL to include in the NPRM and final rule an analysis and 

discussion of the effects that the 2011 Wage Rule’s wage 

calculation methodology might have on U.S. workers. 

We likewise hold that the DOL provided the “reasoned 

analysis supported by the evidence” required by the APA. 

Prometheus Radio Project v. FCC, 652 F.3d 431, 462 (3d Cir. 

2011). Appellants’ challenge to the DOL’s compliance with 

this requirement focuses on the DOL’s purported failure to 

respond to public comments “criti[cizing] DOL for adopting 

diverse wage data sources and urg[ing] DOL to ‘show its 

work’ to corroborate that the various methodologies were 

mutually validating . . . .” Appellants’ Br. at 66. Appellants 

also take issue with the DOL’s purported disregard of public 

comments “urg[ing] DOL to make a more expansive view 

[of] . . . adverse impact on other American co-workers.” Id.

at 67.
50

It is well established, however, that an “agency need 

not address every comment” it receives. City of Waukesha v. 

EPA, 320 F.3d 228, 257 (D.C. Cir. 2003). The APA requires 

only that the NPRM show the court “what major issues of 

policy were ventilated by the informal procedures and why 

the agency reacted to them as it did.” Auto. Parts & 

Accessories Ass’n v. Boyd, 407 F.2d 330, 338 (D.C. Cir. 

1968). The DOL responded to comments concerning a 

variety of topics related to the Proposed 2011 Wage Rule, 

devoting an entire section of the final rule to discussing the 

300 comments submitted. See 2011 Wage Rule, 76 Fed. Reg. 

at 3,454–3,468. For example, the DOL responded to 

comments concerning the ability of employers to find U.S. 

workers interested in H-2B job opportunities; the propriety of 

the wage methodology adopted, including use of SCA or 

DBA wage data and the elimination of the four-tier wage 

method; and the alleged error in the data the Department used 

to measure the effect of the H-2B wage methodology on 

wages. See id. at 3,454–3,463. The DOL also discussed 

comments proposing alternative methods for calculating the 

prevailing wage rule and explained why it rejected these 

alternatives. See id. at 3,463–3,468. In responding to the 

comments, and in the discussion portion of the notice 

accompanying the final rule, the DOL “examine[d] the 

relevant data and articulate[d] a satisfactory explanation for 

its action including a ‘rational connection between the facts 

found and the choice made.’” State Farm, 463 U.S. at 43

(quoting Burlington Truck Lines v. United States, 371 U.S. 

156, 168 (1962)); see 2011 Wage Rule, 76 Fed. Reg. at 

3,452–3,468. This is all that the APA requires.

Accordingly, the DOL did not act arbitrarily and 

capriciously in contravention of the procedural requirements 
51

of the APA, and the 2011 Wage Rule is not invalid on that 

ground. 

2.

Finally, we turn to Appellants’ substantive challenge 

to the 2011 Wage Rule. Appellants contend that section 

1182(p)(4) of the INA required the DOL to use the four-tier 

wage methodology from the H-1B program as the prevailing 

wage calculation mechanism in the H-2B program and erred 

by eliminating the four-tier structure from the wage 

calculation regime. Under section 706 of the APA, we must 

set aside an agency action that is “in excess of statutory 

jurisdiction, authority, or limitations, or short of statutory 

right.” 5 U.S.C. § 706(2)(C). This inquiry “necessarily 

entails a firsthand judicial comparison of the claimed 

excessive action with the pertinent statutory authority.” W. 

Union Tel. Co. v. FCC, 541 F.2d 346, 354 (3d Cir. 1976). 

Section 1182(p)(4) provides:

Where the Secretary of Labor 

uses, or makes available to 

employers, a governmental survey 

to determine the prevailing wage, 

such survey shall provide at least 

4 levels of wages commensurate 

with experience, education, and 

the level of supervision. Where 

an existing government survey 

has only 2 levels, 2 intermediate 

levels may be created by dividing 

by 3, the difference between the 2

levels offered, adding the quotient 
52

thus obtained to the first level and 

subtracting that quotient from the 

second level.

8 U.S.C. § 1182(p)(4) (2012). We acknowledge that this 

statement, taken alone and out of context, suggests that the 

four-tier methodology should be used in making prevailing 

wage determinations. But therein lies the problem with 

Appellants’ argument: it is taken entirely out of context, with 

no reference to the section or subsection within which it is 

was enacted. Indeed, it is axiomatic that “the proper reading 

of a statute must take account of words in the context of the 

entire statute.” United States v. Atiyeh, 402 F.3d 354, 366 (3d 

Cir. 2005); see also FDA v. Brown & Williamson Tobacco 

Corp., 529 U.S. 120, 132 (2000) (“The meaning—or 

ambiguity—of certain words or phrases may only become 

evident when placed in context.”). 

We therefore turn to the statutory context of section 

1182(p)(4), which was enacted as part of the Consolidated 

Appropriations Act of 2005, and, more specifically, pursuant 

to the Title IV, “Visa Reform,” sub-section 423, the “L-1 

Visa and H-1B Visa Reform Act.” See Pub. L. No. 108-447, 

div. J., tit. IV, § 423, 118 Stat. 2809, 3353–54 (2004). The 

short title of the section under which section 1182(p)(4) was 

enacted is “H-1B Prevailing Wage Level.” Id. Indeed, as its 

title would suggest, the L-1 Visa and H-1B Visa Reform Act 

amended only provisions of U.S. immigration statutes dealing 

with the L-1 and H-1B visa programs—the H-2B program is 

not mentioned once in the Act. See generally id. Read in this 

context, it is abundantly clear that section 1182(p)(4)’s 

requirement that the DOL use the four-tier methodology 

applies only to the H-1B program. We therefore conclude 

that the DOL did not act “in excess of statutory jurisdiction, 
53

authority, or limitations, or short of statutory right” in 

eliminating the four-tier scheme from the 2011 Wage Rule.20 

5 U.S.C. § 706(2)(C). Accordingly, we reject Appellants’ 

argument that the 2011 Wage Rule violates the requirements 

of the INA.21 

 

20

 Because we find that the statute is unambiguous, we 

reject the Departments’ and Intervenors’ assertion that 

Chevron deference is warranted. See Nat’l Cable, 545 U.S. at 

982 (noting that Chevron deference is warranted only if the 

court first finds that the statute is ambiguous). 

21

 We likewise reject Appellants’ argument that the 

DOL violated the APA when it issued the April 2011 NPRM 

in which it, among other things, modified the H-2B program 

certification form, finding, as the District Court did, that 

Appellants waived this argument. See La. Forestry Ass’n, 

889 F. Supp. 2d at 737 n.19. We have carefully reviewed the 

record—taking steps to obtain a complete copy of the 

complaint, rather than the truncated version reproduced in the 

Joint Appendix—and conclude that the claim was raised for 

the first time only in pretrial memoranda and was not, as 

Appellants claim, “prominently stated in the Complaint.” 

Appellants Br. at 61. Compare J.A. 407-24, with D.C. 

Docket, No. 1-11-cv-01623-DDD-JDK, No. 1 (W.D. La. 

Sept. 19, 2011). Indeed, the April 2011 notice, 76 Fed. Reg. 

21,036, is not cited one time in the Complaint. See D.C. 

Docket, No. 1-11-cv-01623-DDD-JDK, No. 1. Nor did 

Appellants move to amend the Complaint to include a 

challenge to the April 2011 notice. Accordingly, the claim is 

waived. See Josey v. John R. Hollingsworth Corp., 996 F.2d 
54

III.

 For the foregoing reasons, we affirm the judgment of 

the District Court.

 

632, 641-42 (3d Cir. 1993); Zimmerman v. PepsiCo., Inc., 

836 F.2d 173, 181 (3d Cir. 1988).