Will Obama's Regulatory Review Affect the New H-2A Regulation?
Since posting my summary of the new H-2A regulation below, I’ve received a number of calls and notes from folks asking me whether the new H-2A regulation will—for lack of a better phrase—remain in effect. As many of you are aware, on January 26, 2009, President Obama issued a memorandum to the heads of executive departments and agencies entitled “White House Memo Calling for Halt to Midnight Regulations Published in Federal Register”. As the memo’s title implies, the new administration plans to review and possibly amend or quash regulations issued in the final hours of the Bush administration. At first blush the new H-2A regulation would certainly seem to fall within the somewhat loosely defined category of a “midnight regulation” and would therefore be subject to review. However, after analyzing the memo, I don’t think the H-2A reg actually is subject to any further administrative review.
The directive’s first prong stipulates “…no proposed or final regulation should be sent to the Office of the Federal Register for publication unless and until it has been reviewed and approved by a department or agency head appointed or designated by the President after noon on January 20, 2009…[.]” (my emphasis). On this count, the new H-2A regulation was already published on December 18, 2008, so the directive's first prong wouldn’t apply.
The directive’s second prong requires that the agencies or departments “[w]ithdraw from the OFR all proposed or final regulations that have not been published in the Federal Register so that they can be reviewed and approved by a department or agency head…[.]”(again, my italics). Since, as I stated above, the new H-2A regulation was already published in the Federal Register on December 18, 2008, the directive’s second prong also would not apply to the new H-2A regulation.
Finally, the directive’s third prong requires agencies and departments to “[c]onsider extending for 60 days the effective date of regulations that have been published in the Federal Register but not yet taken effect, subject to the exceptions described in paragraph 1…[.]” (my italics and bolding added). The new H-2A regulation, in fact, took effect on January 17, 2009. The Obama administration’s regulatory review memo wasn’t published until January 26, 2009. As a result, the new H-2A regulation also falls outside the directive’s third prong and, therefore, should not be subject to further administrative review.
In short, based on what I’m hearing, I sadly yet fully expect the DOL and USCIS to be in a state of unbridled confusion over the issue of whether the new H-2A regulation is truly in effect. But, according to my analysis, the new regulation is definitely the law of the land. It’s clear that practitioners, employers and governmental agencies must forge ahead under the new regulation’s requirements.
