H-2B Program Facing Major Challenges

The H-2B program is facing major challenges. Before H-2B workers can be engaged, the program requires a labor certification from the U.S. Department of Labor (DOL) and then a filing with U.S. Citizenship and Immigration Services (USCIS).  

In 2008, the DOL changed the system for setting the prevailing wage for H-2B workers to the one used for H-1B workers. This was challenged in U.S. District Court, resulting in a series of injunctions. The DOL proposed changing the system again in 2011, but this change never went into effect because of new court challenges and riders attached to DOL appropriations bills which prohibited applying the funds to implement the 2011 regulations. As a result, the DOL has been following the 2008 regulations for prevailing wage determinations.

This program was sent into turmoil on March 21, when a U.S. District Court held that the DOL has no legislative rule-making authority for the H-2B program, and thus the 2008 regulations were never validly adopted. Comite de Apoyo a Los Trabajadores Agricolas (CATA) v. Solis (E. D. Pa. 2013). The court issued a permanent injunction vacating the 2008 regulations, leaving the DOL with no valid basis for setting prevailing wages. Then, on April 1, the Eleventh Circuit Court of Appeals upheld a preliminary injunction enjoining implementation of the 2011 proposed regulations, which had finally been set to go into effect. Bayou Lawn & Landscape et al. v. Oates (11th Cir. 2013).

This week, the DOL said that, effective March 22, it is holding in abeyance the issuance of final determinations on most pending H-2B applications for temporary labor certification in compliance with the CATA injunction. The only cases moving forward are those where the prevailing wage was based on a private wage survey, a collective bargaining agreement, or Service Contract Act or Davis Bacon Act wage determinations. The DOL also indicated that it intends to promulgate a revised wage rule within 30 days of the date of the CATA injunction.

Following suit, USCIS announced on April 2 that it is suspending adjudication of pending H-2B petitions while the government considers its response to the CATA injunction. A follow-up announcement indicated that cases where the Temporary Labor Certification from the DOL is based on a prevailing wage under the 2008 system will be suspended, but cases where the Labor Certification is based on other sources will move forward. Premium processing of all USCIS petitions for H-2B workers has been suspended until further notice. Additional details are available here on the USCIS website.

Chris Bauer, Manager of Immigration Services at MSEC, advises that employers considering H-2B programs in the near future wait to see how the DOL responds at the end of April or to use a private wage survey for their H-2Bs in lieu of the DOL’s system. She also notes that reports on comprehensive immigration reform negotiations indicate that a new year-round, low-skilled worker program may be included in legislation, expected to be made public later this month.