The Department of Labor (DOL) recently finalized three notable rules that expand how certain employers can qualify as “retail” businesses to fall under an exemption to the Fair Labor Standards Act, let employers offer bonuses and hazard pay to workers with “fluctuating workweeks,” and expand the secretary of labor’s authority to review rulings by two legal panels that hear administrative appeals.

In a Law360 piece, Harris Beach immigration attorney L.J. D’Arrigo weighed in on the secretary of labor’s expanded authority. The DOL finalized a rule May 19 that gives Labor Secretary Eugene Scalia and subsequent DOL secretaries “discretionary secretarial review” over decisions issued by the Board of Alien Labor Certification Appeals and the Administrative Review Board.

D’Arrigo said it remains to be seen how the labor secretary’s newfound discretionary power will be asserted, he said he is “concerned and admittedly skeptical” about the rule in the BALCA context. The entire immigration system has been “turned upside down” over the past four years without any changes to statutes or regulations, L.J. added, and the DOL’s rule regarding BALCA could be indicative of a broader effort to curtail immigration.

“In my more than 20 years of practice, I’ve witnessed more drastic changes in my employment-based immigration practice in the past few years than in my entire career. My concern is that this development provides yet another example of one-man rule to achieve an overarching policy goal of limiting immigration by investing seemingly unfettered discretion to disrupt years and years of [BALCA] precedent that employers have relied on.”

Our Immigration Law Practice Group includes immigration attorneys that work across New York state in our Albany, Buffalo, Ithaca, Long Island, New York City, Rochester and Syracuse offices. Our immigration lawyers focus on strategies – including immigrant visas for permanent U.S. resident status and temporary visas for foreign nationals – to ensure that employers are able to hire, transfer, and retain the brightest and best non-U.S. talent.