FR 2020-28951

The document outlines a new rule issued jointly by the Department of Homeland Security and the Department of Labor. This rule extends the discretionary review authority of the Secretary of Labor to certain H-2B temporary labor certification cases. Essentially, it allows the Secretary to review cases that are decided by or pending before the Board of Alien Labor Certification Appeals (BALCA). This move is part of a broader initiative to ensure that internal processes within the department are properly supervised by the Secretary. The rule is intended to be applied mainly to cases of significant importance.

Significant Issues and Concerns

One significant issue with this rule is that it could lead to potential confusion or concerns about transparency. Although the rule addresses internal agency management and procedures, which are not subject to the notice and public comments requirements of the Administrative Procedure Act (APA), it still invites public comments. This could stir uncertainty regarding the transparency of the process, as the public may question why some parts of the rule are exempt from such procedures.

Another concern is the ambiguity around how often the discretionary review will be exercised. The document notes that this review is not anticipated to be used frequently, which could lead to unpredictability about when and how this power will be utilized. Without clear guidelines or criteria for initiating the Secretary's discretionary review, there may be uncertainties regarding decision-making transparency and oversight.

Moreover, the rule's joint issuance by DHS and DOL following conflicting court decisions raises questions about the legal authority underpinning these changes. This aspect may require further clarification or justification to appease stakeholders and the public.

On the economic side, the document asserts that there will be no significant impacts from this rule. Yet, it lacks a detailed analysis or evidence to support these claims, which could be considered overly simplistic or dismissive of potential impacts on various sectors.

Impact on the Public and Stakeholders

For the general public, this document might not directly affect daily life, but it does indicate how labor certification processes could be influenced by internal departmental reviews, which indirectly can impact labor markets and employment opportunities.

Specific stakeholders, like employers who rely on temporary non-immigrant labor, might be particularly attentive to this rule. They could view the discretionary review as a double-edged sword. On one hand, it might create a safeguard ensuring fair and thorough consideration of cases by enabling an authoritative review. On the other hand, it could introduce delays or uncertainties in the finalization of labor certification decisions if the Secretary decides to exercise this power. Such unpredictability might impact hiring plans and the ability to source seasonal labor efficiently.

For legal professionals and human rights advocates, this rule signals a potential point of interest in terms of regulatory authority and its implications on immigrant labor rights and practices. They may need to monitor its application to ensure it is applied fairly, without overstepping or negatively impacting labor rights or due process.

Overall, while this rule provides a mechanism for additional oversight, it requires careful implementation to ensure that it adds value without causing unnecessary complications or confusion in the H-2B program's administrative processes.

The document presents a direct final rule jointly issued by the Department of Homeland Security (DHS) and the Department of Labor (DOL). It primarily revolves around extending the discretionary review powers of the Secretary of Labor to cases involving H-2B temporary labor certifications. Within this context, a notable financial aspect of the rule is its determination regarding economic impact.

The document states that the rule will not have an annual effect on the economy of $100 million or more. This specific threshold is significant as it determines the classification of regulatory actions under Executive Order 12866. If the rule had an impact at or above this amount, it would be categorized as a significant regulatory action, triggering additional review processes and requirements. However, the Departments, in conjunction with the Office of Management and Budget (OMB), have assessed that this rule does not meet that financial benchmark.

Relation to Identified Issues

1. Transparency Concerns and Economic Impact Analysis: One issue highlighted is the potential confusion around transparency due to the non-requirement for public notice and comment. Financially, this interplay can be scrutinized as the decision not to classify the rule as a significant regulatory action may lead to perceptions of insufficient economic impact analysis. The rule's assertion of not having a substantial financial effect could be perceived as oversimplification without detailed evidence backing the claim.

2. Legal Authority and Financial Impact: Another identified issue is the joint issuance following conflicting court decisions, which questions the legal authority underpinning the rule. The financial assessment asserting no significant economic impact might play a part in justifying not invoking more comprehensive reviews or additional burdens following these legal challenges. The financial logic here appears to align with minimizing administrative overhead by establishing that the rule does not trigger significant economic thresholds that would necessitate broader procedural actions.

While the document makes clear financial assertions about economic effects, the absence of detailed financial analysis or evidence supporting these claims may prompt stakeholders to question the financial transparency and thoroughness of the rule's implementation strategy.