DHS and DOL to Issue Joint Interim Final Rule on H-2B Petitions

As previously-reported, on March 4, 2015, the federal district court in the Northern District of Florida vacated the Department of Labor’s (DOL) 2008 H-2B regulations on the ground that DOL lacks authority under the Immigration and Nationality Act to issue regulations in the H-2B program (Perez v. Perez, No. 3:14-cv-682 (N.D. Fla., Mar. 4, 2015). Because this decision vacated the rule and permanently enjoined DOL from enforcing it, DOL was forced to immediately discontinue the processing of applications for temporary labor certification in the H-2B program.  The Department of Homeland Security (DHS) also temporarily suspended adjudication of H-2B petitions.

The H-2B visa program allows U.S. employers to bring foreign workers to the United States to fill temporary nonagricultural jobs. Suspending adjudication of H-2B petitions, even temporarily, is likely to adversely affect H-2B dependent employers who rely on the H-2B program to secure employees for temporary one-time occurrences, seasonal needs, peak load needs, or intermittent needs.

On March 16, 2015, DHS and DOL made a statement that they are working expeditiously to issue a joint Interim Final Rule (IFR). The agencies plan to promulgate this rule by April 30, 2015. In addition, DOL will seek to determine whether relief from the Court’s decision may be obtained such that processing can continue during the period of time before an IFR is promulgated.

The agencies made the following statement: “DOL and DHS recognize the hardship that has resulted from the Court’s decision. That is why the Departments are moving as quickly as possible to issue new regulations that would be consistent with the decision. In so doing, the Departments must be mindful of other court decisions that have invalidated past sub-regulatory actions in the H-2B and related programs, including the issuance of guidance in the absence of rulemaking.”

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