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AFL-CIO v. BROCK

August 5, 1987

AFL-CIO, et al., Plaintiffs,
v.
William Brock, et al., Defendants



The opinion of the court was delivered by: SPORKIN

 Stanley Sporkin, United States District Judge.

 By this action plaintiffs challenge regulations promulgated by the United States Department of Labor ("DOL" or "the Department") concerning the employment of nonimmigrant alien workers in the United States. The Secretary of Labor regulates the wages and working conditions of these alien laborers. Thus, before an employer can hire alien workers, it must agree to comply with DOL regulations and it must receive the appropriate "certification" from the Department of Labor. However, the Secretary of Labor is prohibited by law from certifying the importation of nonimmigrant alien workers unless "the employment of the alien . . . will not adversely affect the wages and working conditions of workers in the United States similarly employed." 8 U.S.C. § 1186(a)(1)(B). Historically, the Secretary fulfilled this mandate by establishing an "adverse effect wage rate" ("AEWR") in areas where wages were depressed by the importation of aliens. The AEWR was set above the prevailing wage rate in the area and employers were required to pay the higher rate. *fn1"

 Purportedly responding to the passage of the Immigration Reform and Control Act of 1986 ("IRCA"), Pub. L. No. 99-603, 100 Stat. 3411, (1987), codified at 8 U.S.C. § 1101 et seq., the Secretary promulgated new AEWR regulations effective June 1, 1987, which essentially reduce the AEWR to prevailing wage rates by setting it equal to the "annual weighted average hourly wage rate. . . ." 20 C.F.R. § 655.107, 52 Fed. Reg. 20521, (June 1, 1987).

 Plaintiffs allege that these regulations establishing a new methodology for setting the AEWR are arbitrary, capricious, an abuse of discretion, and otherwise not in accordance with law, and they seek to enjoin their implementation. Because I find that the regulations do not comply with the law requiring that the Secretary ensure "employment of the alien . . . will not adversely affect the wages and working conditions of workers in the United States similarly situated," 8 U.S.C. § 1186(a)(1)(B), I grant the plaintiffs' motion and enjoin the implementation of the regulations. *fn2"

 I. BACKGROUND

 A. Authority

 Before IRCA, under the Immigration and Nationality Act of 1952 ("INA"), Pub. L. No. 414, 66 Stat. 166, as amended, 8 U.S.C. § 1101 et seq., the decision to grant or deny a nonimmigration visa petition was solely within the authority of the Attorney General, 8 U.S.C. § 1101(a)(15)(H)(ii), § 1184 (1986), who in turn delegated the authority to the Immigration and Naturalization Service ("INS"). 8 C.F.R. 214.2(h)(3). It was INS's policy, however, as manifested in regulations implementing the Act, to require that the Department of Labor advise INS with respect to, among others, the following two issues:

 
(a) Whether there are a sufficient number of able, willing, and qualified U.S. workers available to do the work proposed to be done by the alien; and
 
(b) Whether the employment of the alien will adversely effect the wages and working conditions of similarly employed U.S. workers.

 See, e.g., 20 C.F.R. § 655 (January 16, 1981) implementing 8 C.F.R. § 214.2(h)(3)(i). Thus, under the old regulations, INS demanded that an employer who wanted to import aliens must first seek certification on these two issues from the Department of Labor.

 IRCA changed the Department of Labor's AEWR authority by codifying what had been a regulatory mandate. *fn3" Now, instead of acting in an advisory capacity to the INS, the Department of Labor has specific authority to certify alien workers granted by the statute itself. 8 U.S.C. § 1186. The words of the new statute closely parallel what had been the regulatory language developed by INS under the old law. Thus, the law (itself) now requires that before the Attorney General approve a petition for importation of alien workers, the employer desiring to import aliens must seek certification from the Secretary of Labor that:

 
(A) there are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services involved in the petition, and
 
(B) the employment of the alien in such labor or services will not adversely affect the wages and working conditions of workers in the United States similarly employed.

 B. Adverse Effect Wage Rate

 As the Department worked to fulfill its regulatory mandate -- that is, to ensure that importation of alien workers would not adversely effect wages of American workers -- it "found for many years that the presence of alien workers in agriculture depresse[d] the wages of similarly employed U.S. workers." 52 Fed. Reg. 20502 (June 1, 1987). *fn5" Fearing that widespread wage deflation might result from mass importation of alien workers, the Department protected the wages of U.S. workers through the promulgation of an enhanced minimum wage known as the "adverse effect wage rate." Employers seeking certification from the Department to import alien workers had to agree to pay this enhanced wage both to the American workers they might hire and to the alien worker.

 Thus the AEWR became the specific mechanism by which the Department fulfilled its mandate to protect U.S. workers. Indeed, in the regulations at issue here, the Department describes the purpose of the AEWR in the exact language of the statutory provision requiring it to protect U.S. workers. Compare 52 Fed. Reg. 20502 ("The purpose of the AEWR is to ensure that the wages of similarly employed U.S. workers will not be adversely affected by the importation of alien workers.") with 8 U.S.C. § 1186(a)(1) (the Department must certify that "employment of the alien . . . will not adversely affect the wages and working conditions of workers in the United States similarly employed.").

 Though the concept of an AEWR dates back as far as the early 1950s, 52 Fed. Reg. 20503 (June 1, 1987), DOL first established AEWRs for 28 states in 1964. *fn6" 24 Fed. Reg. 19101 (1964), Pl. Ex. 5. "The formula for determining these rates used the 1950 Census of Agriculture average hourly wage rate for each State adjusted by the 1950-1963 trend in manufacturing wages . . . These changes had the effect of generally raising the AEWR for each State above the average agricultural wage . . ." DOL Assessment, Appendix to Pl. Ex. 6 at 2. Beginning in 1968, the Department began calculating AEWRs by using the 1964 AEWR as a base and by increasing it annually "by the same percentage change in the Statewide annual average wage rates for field and livestock workers, as surveyed by the United States Department of Agriculture (USDA)." 52 Fed. Reg. 20503 (June 1, 1987). *fn7" This traditional methodology produced AEWRs ...


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