Business Immigration Insights

On March 20, 2015, the U.S. Department of Labor issued new FAQs providing more details on the latest developments in the ongoing federal court case challenging DOL's authority to issue and implement regulations for the H-2B temporary worker program.

The H-2B program allows U.S. employers to bring nonagricultural workers from foreign countries to fill temporary U.S. jobs based on one-time occurrences or the employer's need for seasonal, peak load or intermittent workers. While H-2B petitions must be filed with and approved by U.S. Citizenship and Immigration Services, DOL oversees the preliminary steps employers must comply with before filing those petitions, including obtaining prevailing wage determinations and proving no qualified U.S. workers are available for the positions. Since the federal court's vacatur of DOL's authority to carry out its part of the H-2B program, USCIS has also stopped processing I 129 petitions for H-2B workers.

As the FAQs explain, the federal court for the Northern District of Florida granted, on March 18, 2015, a temporary stay of its vacatur order and judgment in Pérez v. Pérez. That order/judgment, issued on March 4, 2015, vacated DOL's H 2B regulations and required the agency to stop processing H-2B prevailing wage requests, job orders, and temporary labor certification applications immediately. The temporary stay of the court's order is effective through April 15, 2015. During that period, DOL will resume processing pending H 2B requests, orders and applications and will accept new ones.

On April 16, 2015, when the temporary stay is currently scheduled to end, DOL (and presumably USCIS) will again cease H 2B processing. On and after that date, until further notice, employers may no longer file job orders, wage requests or labor certification applications under the H-2B program, and any such filings that are still pending will not be processed further.