A Federal District Court in North Carolina recently issued a preliminary injunction prohibiting the U.S. Department of Labor (DOL) from suspending the H2-A rule, issued last December. The preliminary injunction reinstates the Bush rule, which would have been suspended July 1, and halts DOL from reinstating the H2-A rules that were in effect previously. This preliminary ruling is the latest – but not the last – in a series of developments over the H2-A program. It represents, at least temporarily, a victory for advocates of reform of the H2-A program. The ruling, however, is largely confined to how DOL went about suspending the December 2008 H2-A rule and reinstating the old rule, and does not speak to the merits of either rule. Those issues – in particular the Adverse Effect Wage Rate (AEWR) methodology employed by DOL under the December rule – are being contested in another lawsuit brought by Unite Farm Workers (UFW) that is pending in the Federal District Court in Washington, DC. AFBF, while not a party to the lawsuit in North Carolina, has filed a motion to intervene in the court case in Washington, DC. The court has not ruled on AFBF’s motion. The UFW recently filed a request for summary judgment on the wage portion of the December H2-A rule. It is unclear what impact the ruling in North Carolina will have on that case. While not a victory on the merits of the substance of the December H2-A rule, the North Carolina ruling is nonetheless a major win. The case provides a positive outcome on the Administrative Procedures Act (APA), a statute that governs all federal rulemaking. We will keep states appraised of any appeals or other developments as they occur.
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