On March 4, 2015, the Department of Labor (DOL) suffered a major blow as result of a ruling by a federal district court in the Northern District of Florida. Specifically, in Perez v. Perez, No. 3:14-cv-682 (N.D. Fla. Mar. 4, 2015), the court ruled that DOL lacked the authority under the Immigration and Nationality Act to issue regulations in the H-2 program. As a result, the court vacated the DOL’s 2008 H-2B regulations that establish the standards and procedures for certifying an employer’s request to petition for H-2B workers and determine their prevailing wage rates. This decision follows an earlier decision issued by the same court in Bayou Lawn & Landscape Servs. v. Perez, 2014 WL 7496045 (N.D. Fla. Dec. 18, 2014) that vacated DOL’s proposed 2012 H-2B regulations. DOL is currently appealing the decision in the Bayon Lawn case.
After the ruling was announced, DOL pronounced that effective immediately it would no longer accept or process requests for prevailing wage determination or applications for labor certifications in connection with the H-2B program. And, because H-2B petitions require temporary labor certifications issued by DOL, U.S. Citizenship & Immigration Services (USCIS) has also temporarily suspended adjudication of H-2B petitions, including the premium processing of said petitions.
It is unknown how long the suspension by both DOL and USCIS will last, or what the ramifications to the H-2B program will be. This is in large part the result of the Third Circuit’s ruling in Louisiana Forestry Ass’n v. Sec’y United States DOL, 745 F.3d 653 (3d Cir. 2014). In Louisiana Forestry Ass’n, a group of employer associations that recruit H-2B workers challenged the DOL’s rule making authority. Ruling in favor of DOL, the Third Circuit held that
...the 2011 Wage Rule was issued pursuant to the DHS’s permissible “conditioning” of the grant of H-2B petitions on the advice of the DOL pursuant to the DHS’s charge from Congress to “determine[ ]” H-2B visa petitions “after consultation with appropriate agencies of the Government.” 8 U.S.C. § 1184(c)(1). 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.
Id. at 675. Thus, if the Eleventh Circuit upholds the Florida district court’s decision, the conflict between circuits could find its way before the U.S. Supreme Court.
By way of background, the H-2B program is our temporary guest worker program for non-agricultural jobs. Currently, USCIS only issues 66,000 H-2B visas per fiscal year. Of that amount, half are allocated to workers starting at the beginning of our fiscal year (October 1- March 31), with the remaining half for workers starting at the second half the fiscal year (April 1 - September 30). The H-2B visas are relatively simple in concept. Employers who anticipate a labor shortage and, therefore, a need for temporary workers, can petition for an H-2B visa. In order to obtain that type of visa, the employer must be able to show three things: (i) there are not enough willing, able, and qualified U.S. workers; (ii) employing the foreign worker will not adversely affect the wages and working conditions of similar U.S. workers; and (iii) the need for the foreign worker’s services is temporary or seasonal.
Because the H-2B program is an integral part of our economy, employers who participate in the H-2B program should contact immigration in light of the court’s ruling.