Federal Judge Provides a Bit of Good Immigration News

There’s been a small bit of genuine good news on the alien worker front, thanks to a federal judge.

Tens of thousands of H-2B nonimmigrant workers will get an unexpected pay raise on or near October 1 this year because of an order signed by Judge Louis Pollak. He sits in the federal district court in Eastern Pennsylvania, but the order will have a nationwide impact. There were 56,381 admissions of H-2B workers in FY 2009, the last year that statistics are available.

The H-2Bs are short-term, non-agricultural workers, often treated badly, and often unwittingly shouldering aside unemployed U.S. workers for jobs in hotels, landscaping, forestry, and a little later in the year, ski resorts. The grim nature of much of this work, and the wages paid for it, is described at some length by my colleague David Seminara.

A small U.S. labor union with an agricultural-sounding name, Comite De Apoyo A Los Trabajadores Agricolas, had set in motion a lawsuit against the U.S. Department of Labor, which related to the formula by which the department established the wages to be paid to the H-2B workers. Mexican nationals predominate in the program.

The union won the case before Judge Pollak and, as a result, the Department created a new set of rules for higher wages, which it said would go into effect on January 1, 2012.

Judge Pollack ruled last month that the timing for the new wages was inappropriate, and a burden on these low-wage workers, and ordered the Department to move forward the effective date of the pay increase to what is expected to be around October 1. The Department needs to take some procedural steps before that happens.

For readers with access to the federal courts’ electronic data system, it can be found through the PACER website. I learned about the case from the July 4 issue of Interpreter Releases, the trade paper of the immigration bar.

I would be genuinely surprised if the Department of Labor appealed the ruling; DoL, DHS and the union (and some of its allies) are the only parties to the case, so no H-2B employers – happily – are currently involved in the proceedings and are thus unlikely to file an appeal.

Routinely, every time a government agency makes a nonimmigrant worker program less attractive to employers, as Judge Pollak has now done, fewer employers tend to use it, and those using it tend to participate less fully.