PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 18-2370 OUTDOOR AMUSEMENT BUSINESS ASSOCIATION, INC.; MARYLAND STATE SHOWMEN'S ASSOCIATION, INC.; THE SMALL AND SEASONAL BUSINESS LEGAL CENTER; LASTING IMPRESSIONS LANDSCAPE CONTRACTORS, INC.; THREE SEASONS LANDSCAPE CONTRACTING SERVICES, INC; NEW CASTLE LAWN & LANDSCAPE, INC., Plaintiffs – Appellants, v. DEPARTMENT OF HOMELAND SECURITY; UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES; DEPARTMENT OF LABOR; EMPLOYMENT & TRAINING ADMINISTRATION; WAGE & HOUR DIVISION, Defendants – Appellees, -------------------------------- MARGHARITA KURI; TIMOTHY KING; HENRY WOJDYLO; RONALD NYENHUIS; SHIRLEY HARMON; ANTONIO RIVERA MARTINEZ; ANDREW MITSCHELL; COMITÉ DE APOYO A LOS TRABAJADORES AGRICOLAS (CATA); PINEROS Y CAMPESINOS UNIDOS DEL NOROESTE; NORTHWEST FOREST WORKERS CENTER, Amici Supporting Appellees. United States District Court for the District of Maryland. Ellen L. Hollander, District Judge. (1:16-cv-01015-ELH) Argued: September 10, 2020 Decided: December 18, 2020 Before KEENAN, WYNN, and RICHARDSON, Circuit Judges. Affirmed in part and vacated in part by published opinion. Judge Richardson wrote the opinion, in which Judge Keenan and Judge Wynn joined. ARGUED: Robert Wayne Pierce, PIERCE LAW FIRM, Annapolis, Maryland; Leon R. Sequeira, Arlington, Virginia, for Appellants. Kathryne M. Gray, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees. Clermont Fraser Ripley, NORTH CAROLINA JUSTICE CENTER, Raleigh, North Carolina, for Amici Curiae. ON BRIEF: Joseph H. Hunt, Assistant Attorney General, William C. Peachey, Director, Erez Reuveni, Assistant Director, Glenn M. Girdharry, Assistant Director, Joshua S. Press, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees. Edward Tuddenham, Paris, France; Art Read, JUSTICE AT WORK, Philadelphia, Pennsylvania; Vanessa Coe, LEGAL AID SOCIETY OF PALM BEACH COUNTY, INC., West Palm Beach, Florida; D. Michael Dale, NORTHWEST WORKERS’ JUSTICE PROJECT, Portland, Oregon, for Amici Comité de Apoyo de Los Trabajadores Agricolas (CATA), et al. 2 RICHARDSON, Circuit Judge: H-2B visas provide vital employees for employers who need temporary nonagricultural workers but cannot find help domestically. Each year, H-2B visas allow 66,000 temporary workers to enter the country to meet those demands. A core part of the H-2B visa program is labor certifications—the process of determining whether American workers are available and whether employment of H-2B workers would adversely affect similarly employed American workers. For at least 50 years, the agency in charge of H-2B visas relied on the Department of Labor to provide labor certifications. In 2008, the Department of Homeland Security (the agency now charged with administering the H-2B program) passed rules requiring that employers receive a favorable labor certification from Labor (as Homeland Security’s chosen “consulting agency”) before obtaining a visa. To implement and structure this labor-certification process, Labor promulgated several program and wage regulations. This set off an avalanche of litigation that led to Homeland Security and Labor jointly issuing a new series of rules in 2015. Plaintiffs, a group of employers and associations whose members rely on H-2B visas, challenge Homeland Security’s 2008 Rules and the joint 2015 Rules as exceeding the agencies’ statutory authority. We agree with the district court that the challenge to the 2008 Rules is time-barred. ...
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