Developments in H-2B Processing

MSEC reported earlier this month that on March 4, 2015, the U.S. Department of Labor (DOL) suspended processing of H-2B applications indefinitely because a federal district court in the Northern District of Florida vacated the DOL’s 2008 regulations implementing the H-2B program. Perez v. Perez (N.D. Fla. 2015). U.S. Citizenship and Immigration Services (USCIS, a division of the Department of Homeland Security) followed suit by suspending H-2B non-immigrant visa processing until further notice.

On March 16, the DOL and the Department of Homeland Security jointly announced that they were working to issue a joint Interim Final Rule for the H-2B program to replace the 2008 Regulations vacated by the court. The statement indicates their intention to issue this rule by April 30, 2015. Advance copies of the Interim Final Rule are not yet available.

In light of that announcement, USCIS resumed H-2B processing for cases where a Temporary Labor Certification had been obtained prior to the DOL’s suspension on March 4 and has now resumed full processing of H-2B cases, which can be filed with DOL Temporary Labor Certifications. USCIS also withdrew H-2B cases from the list of those eligible for premium processing, and this suspension remains in place.

On March 18, the DOL obtained a stay of its order to vacate from the Perez v. Perez court. In light of the stay, the DOL announced that it would resume H-2B processing immediately under the 2008 rule and would continue in this manner until April 15. Under the terms of the stay, however, any application for certification or prevailing wage determination that has not completed DOL processing by the time the stay ends as of April 16 may no longer be processed under the 2008 H-2B rule.

In FAQs issued March 20, regarding H-2B processing during this interim period, DOL advised that processing can resume on prevailing wage determinations, State Workforce Agency job orders, and Temporary Labor Certifications. Any of these actions not completed by April 16, 2015 will be suspended again under the terms of the stay. In addition, the DOL provided this comment concerning current H-2B processing workload:

[P]lease be aware that due to the length of the time period granted by the court and the existing queue of applications that were filed prior to March 5, the Chicago [National Processing Center] will not be able to process and issue a final determination on all applications [for Temporary Labor Certification] submitted before April 15, 2015, and must stop processing applications under the 2008 H-2B rule at the end of that day.