H2B - PROGRAM SUSPENDED

Posted on: April 18 2013 | Posted in: H-2B Visa Program






Effective March 22, U.S. Citizenship and Immigration Services (USCIS) is temporarily suspending adjudication of most Form I-129 H-2B petitions for temporary non-agricultural workers while the government considers appropriate action in response to the Court order entered March 21, 2013 in Comite de Apoyo a los Trabajadores Agricolas et al v. Solis, 2:09-cv-00240-LDD (E.D. Pa). That order granted a permanent injunction against the operation of the portion of the Department of Labor’s (DOL) 2008 wage rule related to certain prevailing wage determinations and gave DOL 30 days to come into compliance with the Court order.

Premium processing of H-2B petitions will be suspended until further notice. Petitioners who have already filed an H-2B petition using the premium processing service and receive no agency action on their case within the 15 calendar day period will be issued a refund.



The Department of Labor intends to promulgate a revised wage rule within 30 days of the date of the Court order. This will allow USCIS to resume adjudication of all H-2B petitions.



Please continue to check www.uscis.gov for updates.





Interpretation of the above from Shawn McBurney of AH&LA:




2008 RULE BLOCKED BY COURT



On March 21, 2013, Judge Legrome Davis of the US District Court For The Eastern District of Pennsylvania issued a ruling in Comite De Apoyo A Los Trabajadores Agricolas, et. al. v. Hilda Solis that prohibits the US Department of Labor from using the wage methodology in H2B petitions that have been used since 2005 and included in a rule from 2008.



This case is separate from and predates the cases against the 2011 wage rule and the 2011 program rule in which several businesses and associations are involved.



As you know, Congress had previously enacted and renewed legislation which blocked the 2011 wage rule from going into effect.



DEPT. OF LABOR STOPS H-2B PROCESSING



As a result of that court decision blocking the 2008 rule and the legislation blocking the 2011 rule, the Department of Labor has no operational procedures to determine and issue prevailing wages for the H-2B program. In response, the Department of Labor announced that it “is holding in abeyance the issuance of final determinations on most pending H-2B applications for temporary labor certification and those it received after March 22, while it considers appropriate action in response” to the Pennsylvania court’s decision.



Since the court blocked the Department of Labor from using the 2005/2008 formula to determine wages, the Department of Labor can continue to process those applications with wages based on the Davis Bacon Act, the Service Contract Act, collective bargaining agreements and, in some cases, private wage surveys.



“EMERGENCY RULE” TO BE ISSUED



Subsequent to that action, the Department of Labor announced that it would be issuing a new “emergency” rule by April 22, 2013 to establish procedures to determine prevailing wages for the program and that no comment and notice period would be provided to the public.



There is a great deal of skepticism that a rule can be written and published in that short of time.



There is no indication of what will be included in the “emergency” rule or how wages will be determined.



USCIS STOPS H-2B PROCESSING



In response to the Department of Labor’s actions, the US Citizenship and Immigration Services (USCIS) announced that it was retroactively suspending the processing of H-2B applications back to March 22, 2013 (see notice below).



Since the court blocked the Department of Labor from using the 2005/2008 formula to determine wages, USCIS noted that it would still process those applications with wages based on the Davis Bacon Act, the Service Contract Act, collective bargaining agreements and, in some cases, private wage surveys.



COURT FINDS THAT DEPT. OF LABOR LACKS RULEMAKING AUTHORITY



In another development on April 1, the US Court of Appeals for the Eleventh Circuit in Florida affirmed a lower court’s injunction against the 2011 H-2B program rule, finding that the Department of Labor lacked statutory authority to issue that rule.



Because the court limited itself to the 2011 program rule specifically, it did not block the Department of Labor from issuing a wage rule. However, the same logic applies in both instances, which may complicate this further at a later time.