DOL Suspends H-2B Program Visa Processing, Moves to Stay Court Order

Author: Marta Moakley, XpertHR Legal Editor

UPDATE: On April 29, 2015, the US DOL and the Department of Homeland Security jointly issued an Interim Final Rule that immediately implements an H-2B program. The Departments also jointly issued a Final Wage Rule that establishes the prevailing wage methodology for that program.

March 17, 2015

The US Department of Labor (DOL) has suspended its processing of requests for prevailing wage determinations and labor certification applications in light of a federal district court's ruling that the DOL lacks authority to issue regulations concerning the H-2B guest worker program. However, the DOL has also filed a motion to stay the court order. Employers that rely on the H-2B program for staffing hard-to-fill positions in certain seasonal industries, such as hospitality, seafood processing, tourism and forestry, may find the suspension particularly disheartening.

A Florida federal district court in Perez v. Perez, No. 3:14-cv-682/MCR/EMT (N.D. Florida, Mar. 4, 2015),ruled that the DOL lacks authority under the Immigration and Nationality Act to issue its December 2008 regulations, which addressed the labor certification process and enforcement for temporary employment in occupations other than agriculture or registered nursing. The court enjoined the DOL from enforcing its regulations, which led to the agency's suspension of labor certification applications.

Legislators on both sides of the aisle have been vocal in their opposition of the DOL's decision to cease accepting or processing requests for H-2B labor certifications. For example, Maryland Senator Barbara Mikulski had written a letter to DOL Secretary Thomas Perez explaining that constituents are "shocked and disappointed" at the DOL's decision, while calling for an emergency rule that would allow the agency to resume the processing of labor certifications.

One day following the DOL's determination to no longer accept or process requests for H-2B labor certifications, the USCIS also suspended its adjudication of Form I-129 H2-B petitions pending resolution of the issue. Specifically, the USCIS:

  • Will only adjudicate H-2B petitions for non-agricultural temporary workers in Guam if the petitions are accompanied by temporary labor certifications issued by the Guam Department of Labor; and
  • Has suspended premium processing for all H-2B petitions until further notice.

However, in a joint statement by the US Departments of Labor and Homeland Security released on March 16, 2015, the agencies state that they are "working expeditiously to issue a joint Interim Final Rule" to address the suspension by April 30, 2015.

The Perez case was only just filed in December 2014, but the parties urged the court to treat the matter in an expedited fashion based on the fact that the issue was a purely legal question and the same court had reached a conclusion in a similar case currently on appeal, Bayou Lawn & Landscape Servs. v. Perez, No. 3:12cv183/MCR/CJK (N.D. Fla. Dec. 18, 2014).

The Perez decision is in direct conflict with a 3rd Circuit Court of Appeals decision in La. Forestry Ass'n v. Sec'y United States DOL, which found that the DOL does have the authority to issue H2-B regulations. If the 11th Circuit Court of Appeals affirms the district court decision in Perez v. Perez, then the ruling could set up a so-called "circuit split" that may work its way to the Supreme Court for ultimate resolution.