H-2B Petitions Temporarily Suspended Due to Federal District Court Ruling That DOL Lacks Authority to Regulate H-2 Visa Program
On March 4, 2015, a Federal District Court in Florida ruled that the U.S. Department of Labor (“DOL”) does not have authority under the Immigration and Nationality Act to regulate the H-2 visa program. As a result of this ruling, the DOL has announced that it is no longer accepting or processing applications for labor certifications or prevailing wage determinations related to the H-2B program.
The Perez Ruling
In its decision in Perez v. Perez, No. 3:14-cv-682 (N.D. Fla. Mar. 4, 2015), the court vacated the DOL’s 2008 H-2B regulations that set the procedures and standards for certification of an employer’s request to petition for H-2B employees and determine their prevailing wage rates. The court followed its own precedent in Bayou Lawn & Landscape Servs. v. Perez, No. 3:12cv183/MCR/CJK (N.D. Fla. Dec. 18, 2014), which vacated the DOL’s proposed 2012 H-2B regulations. The DOL has appealed that decision.
As a result of the Perez decision and the DOL’s announcement, the USCIS said that it will temporarily suspend the processing of H-2B petitions, since H-2B petitions require temporary labor certifications issued by the DOL.
Third Circuit Conflict
Last year, the Third Circuit Court of Appeal ruled in favor of the DOL in a similar matter in Louisiana Forestry Ass’n v. Sec’y United States DOL, 745 F.3d 653 (3d Cir. 2014). That case involved a group of employer associations engaged in recruiting H-2B workers who challenged the DOL’s rulemaking authority. In that case, the Third Circuit ruled that:
“Because we find that the 2011 Wage Rule was promulgated pursuant to a permissible conditioning of the DHS’s granting of H-2B petitions on a decision by the DOL and the limited rulemaking authority the DOL has to carry out that charge, we need not decide today whether, as the Departments contend and Appellants vigorously contest, the DOL has express or implied statutory authority under the WPA or INA to promulgate rules concerning the H-2B program.”
If the Florida District Court’s decision in Perez is appealed and upheld by the Eleventh Circuit Court of Appeal, the U.S. Supreme Court could ultimately decide this split between the circuits.
About the H-2B Program
The H-2B program covers temporary guest workers for non-agricultural jobs; the U.S. Citizenship & Immigration Services (“USCIS”) issues approximately 66,000 H-2B visas every year to employers that anticipate a labor shortage and need temporary workers to fill the gap.
The North Miami attorneys at Jurado & Farshchian, P.L. can assist with your business immigration or residency issues, no matter where you intend to live or work in the United States. Please contact us at (305) 921-0440, or email us at firstname.lastname@example.org.