Outdoor Amusement Business v. Dept of Homeland Security, 983 F.3d 671

H-2B visas admit temporary nonagricultural workers only when U.S. workers are unavailable; the Secretary of Homeland Security must determine petitions "after consultation with appropriate agencies."
Since the 1960s Labor historically provided labor certifications and issued related regulations; in 2008 DHS adopted rules making a favorable Labor certification a condition precedent to DHS considering an H-2B petition.
Labor issued wage and procedural rules for certification that prompted litigation and injunctions; courts vacated or enjoined earlier Labor rules, disrupting H-2B processing.
To restart the program, DHS and DOL jointly promulgated 2015 Program Rules (procedures for certifications) and Wage Rules (prevailing-wage methodology), plus separate 2015 Enforcement Rules.
A group of employers and trade associations sued, arguing the 2008 and 2015 rules exceeded statutory authority; the district court upheld the rules and the government appealed.
The Fourth Circuit held the 2008 challenge time-barred, found plaintiffs had standing to challenge the 2015 Program and Wage Rules but not the 2015 Enforcement Rules, and upheld the 2015 Program and Wage Rules as within Labor’s implied rulemaking authority.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Timeliness of challenge to DHS 2008 rule requiring Labor certification	2008 rule unlawful; suit timely	Facial challenge to a regulation accrues at publication; six-year limit bars claims after that	Challenge to 2008 Rules is time-barred under 28 U.S.C. § 2401(a)
Standing to seek injunction against 2008 rule	Economic harms from delays and compliance give standing	Most plaintiffs never had certifications denied; injunction would not redress alleged harms	One plaintiff (Three Seasons) had standing, but the overall facial challenge remained barred by limitations
Statutory authority for 2015 Program and Wage Rules (DOL rulemaking)	DOL lacks express authority for H-2B rulemaking; DHS has primary authority	DHS may choose an "appropriate" consulting agency; historical practice and statutory gaps permit DOL implied rulemaking to structure certifications	2015 Program and Wage Rules valid: DOL has implied delegation to promulgate rules tied to its consulting role
Standing to challenge 2015 Enforcement Rules	Enforcement rules also exceed authority and injure employers	Plaintiffs made no specific showing of injury from the Enforcement Rules	Plaintiffs lack standing to challenge Enforcement Rules; those claims dismissed without prejudice

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (standing requires concrete, particularized, and imminent injury)
City of Los Angeles v. Lyons, 461 U.S. 95 (1983) (injunctive relief requires immediate threat of future injury)
United States v. Mead Corp., 533 U.S. 218 (2001) (agency interpretive authority may be implied from statutory scheme)
Morton v. Ruiz, 415 U.S. 199 (1974) (administration of federal programs requires rulemaking to fill gaps)
Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984) (agency statutory interpretations subject to deference under some circumstances)
Bennett v. Spear, 520 U.S. 154 (1997) (consultation duties can have coercive effect rendering advice effectively binding)
La. Forestry Ass’n Inc. v. Sec’y U.S. Dep’t of Labor, 745 F.3d 653 (3d Cir. 2014) (upholding Labor rulemaking for related certifications)
Bayou Lawn & Landscape Servs. v. Sec’y of Labor, 713 F.3d 1080 (11th Cir. 2013) (contrary view that Labor lacked H-2B rulemaking authority)
Hire Order Ltd. v. Marianos, 698 F.3d 168 (4th Cir. 2012) (facial regulatory challenges accrue at publication for statute-of-limitations purposes)
Bowsher v. Synar, 478 U.S. 714 (1986) (one plaintiff with standing suffices to confer jurisdiction)