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DOL Halts All H-2B Labor Certifications After Federal Judge Enjoins Regulations

Thursday, March 05, 2015

The Labor Department has halted the processing of all prevailing wage determination requests and labor certification applications under the H-2B program following a March 4 permanent injunction against the department's 2008 H-2B regulations (Perez v. Perez, N.D. Fla., No. 3:14-cv-00682, permanent injunction issued3/4/15).  Judge M. Casey Rodgers of the U.S. District Court for the Northern District of Florida relied heavily on Bayou Lawn & Landscape Services v. Perez, 2014 BL 370226, No. 3:12-cv-00183 (N.D. Fla.2014), which struck down the DOL's 2012 H-2B regulations (33 HRR 11, 1/12/15).  Rodgers noted that the DOL claimed the same statutory authority for the 2008 regulations as for the 2012 regulations. Bayou, she said, held that neither the Immigration and Nationality Act nor the Wagner-Peyser Act conferred rulemaking authority on the DOL.
The court found that an injunction is warranted in this case because the plaintiff, a U.S. citizen, provided sufficient evidence that he was being harmed by the 2008 regulations because their reduced recruitment requirements make it easier for employers to hire H-2B workers instead of citizens. No remedy at law will protect him from the lost job opportunities resulting from the regulations, leaving an injunction the only viable remedy, it said.  The DOL announced March 4 that it is “considering its options” in light of the injunction. However, it has immediately stopped processing all applications under the H-2B program. The decision comes at a time when demand for H-2B visas is rising. According to figures from U.S. Citizenship and Immigration Services, the agency hit the maximum 33,000 H-2B low-skilled, nonagricultural guestworker visas for the first half of fiscal year 2015 as of Jan. 26.  Employers also are well on their way toward maxing out the 33,000 visas for the second half of the fiscal year, with 14,740 H-2B visas approved as of Feb. 27.
DOL statistics also showed a bump in labor certification applications and prevailing wage determination requests under the H-2B program before the court's decision. As of Dec. 31, 2014, employers submitted 2,381 labor certification applications for 32,843 H-2B positions.
Gabriel Perez, who works as a server and busboy in Palm Beach County, Fla., filed a lawsuit against the DOL the day after the federal court's decision in Bayou. In an affidavit, he asserted that he works for $8 per hour and finds jobs through “word of mouth” because of the lack of advertising for open jobs.  He claimed that the 2008 DOL regulations governing the H-2B program make it easier for employers to hire foreign workers rather than U.S. citizens, and that H-2B workers in the county are earning $10 per hour.  According to the court, the 2008 regulations were issued pursuant to a Department of Homeland Security delegation of its rulemaking authority under the H-2B provisions of the INA. In 2012, the DOL issued new regulations overhauling the H-2B program (30 HRR 148, 2/13/12).  (click on link to read full story) 

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