District Court Vacates H-2B Regulations: USCIS Suspends H-2B Adjudications

 

On March 5, 2015, the Federal District Court for the Northern District of Florida vacated the 2008 Department of Labor (DOL) regulations covering the H-2B temporary labor program.  As a result, the United States Department of Labor (DOL) announced it was no longer processing requests for prevailing wage determinations or applications for temporary labor certifications under the H-2B program effective March 4, 2015.  United States Citizenship and Immigration Services (USCIS) announced that it would suspend processing H-2B petitions effective March 5, 2015 and suspend premium processing of H-2B petitions effective March 6, 2015.  USCIS will continue adjudicating 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.

The H-2B is a temporary foreign labor program allowing United States employers to hire foreign nationals in temporary unskilled labor positions for one-time, seasonal, peakload, or intermittent work.  The H-2B program is used within many industries, like hotel, resort, and tourism industries, to fill temporary seasonal jobs.

The H-2B program is codified within the Immigration & Nationality Act (INA).  The INA confers authority for implementation of the program on the Department of Homeland Security (DHS).  Under its regulations, DHS delegates the DOL to establish procedures for administering the temporary labor certification program under the INA.

Chief District Court Judge M. Casey Rodgers vacated the DOL’s H-2B 2008 regulations during summary judgment proceedings in Perez v. Perez, No. 3:14-cv-682 (N.D. Florida, Mar. 4, 2015).  The claimant Gabriel Perez is a United States citizen who works as a server and busboy in Palm Beach California.  Perez argued that his job opportunities were adversely impacted by the DOLs regulations, which allow recruitment temporary foreign workers at a higher wage than normally offered to him. 

Perez’ suit came after issuance of a 11th Circuit Court of Appeals decision in Bayou Lawn & Landscape Servs. v. Sec’y of Labor, 713 F.3d 1080 (11th Cir. 2013), which vacated the 2012 DOL H-2B regulations.  The Court of Appeals held that the INA did not expressly confer authority to the DOL for regulation of the H-2B program.  Comparing Congresses’ express grant of authority to the DOL under the H-2A Agricultural Worker program, the Court of Appeals found that Congress did not intend to grant authority over the H-2B program to the DOL.

Following the decision to vacate the 2012 regulations in Bayou, the DOL reinstated its prior 2008 H‑2B regulations.  Perez claimed that the continued operation under the 2008 regulations violated the Administrative Procedures Act.

Judge Rodgers found that the ruling in Bayou applied to Perez and the Court vacated the 2008 DOL H-2B regulations.  The Court also granted Perez’ unopposed motion to enjoin the H-2B program.

Given the 11th Circuit has already issued an adverse decision related to this issue, it is unlikely the H-2B program will be reinstated within the foreseeable future.  Reinstatement of the program will likely require review of the case by the United States Supreme Court or amendment of the H-2B statute by Congress.



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