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USCIS Temporarily Suspended Adjudication of H-2B Petitions Following Court Order; Court Restarts Adjudications Temporarily

March 4, 2015, the US District Court, Northern District of Florida in Perez v. Perez, No. 3:14-cv-682 (N.D. Florida, Mar. 4, 2015). Granted Plaintiff Gabriel Perez's Motion for a Temporary restraining Order and Preliminary Injunction vacating the U.S. Department of Labor (DOL) Final Rule dated December 19, 2008, permanently enjoining the DOL from enforcing the rule.

Due to and concurrent with the decision in Perez the DOL is no longer accepting or processing requests for prevailing wage determinations or applications for temporary labor certifications in the H-2B program. While DOL considers options in light of the decision in Perez and because H-2B petitions require temporary labor certification issued by the DOL, on March 5, 2015 the US Citizenship and Immigration Services (CIS), part of the Department of Homeland Security, has temporarily suspended adjudication of H-2B petitions, except for certain non-agricultural temporary workers on Guam. See USCIS Press release of March 5, 2015.

The H-2B Program

The H-2B is a nonimmigrant visa program that applies to foreign nationals from certain designated countries to perform non-agricultural labor or services that are of a 'temporary nature in the US. The H-2B was established in 1986, as a part of the 1986 Immigration Reform and Control Act, (IRCA) which split the temporary H worker visa into sub-parts including H-2A agricultural workers and H-2B non-agricultural workers

To employ and H-2B worker a US employer must establish that the need for the worker is temporary. Temporary includes a one-time occurrence, seasonal, peak load or intermittent need. Congress has set an annual cap of 66,000 H-2B visas for each year, half of which become available on April 1, and the other half on October 1 each fiscal year.

From the program inception when there were 15,706 visas issued in 1997 the program has steadily increased in popularity with close to 130,000 visas being issued in 2007. This increase over the initial limit of 66,000 was accomplished by the passage of The Save Our Small and Seasonal Business Act (SOSSBA) by Congress in 2005 which provided an exemption for returning H-2B workers so that they would not count toward the annual 66,000 cap on H-2B visas. The SOSSBA was a windfall for H-2B employers, but Congress failed to renew the legislation in 2008. Demand for H-2B guest workers appears to remain strong, even in areas with high unemployment rates. American companies filed petitions to request nearly 300,000 H-2B workers in FY 2008. See H2-B Program Data, http://www.flcdatacenter.com/CaseH2B.aspx.Department of Labor Foreign Labor Certification Data Center Online Wage Laboratory.

Enter GABRIEL PEREZ, Plaintiff v. THOMAS E. PEREZ, and Eric M. Seleznow, Untied States Department of Labor, Defendants in Perez v. Perez, No. 3:14-cv-682 (N.D. Florida, Mar. 4, 2015). Gabriel Perez in his affidavit states that he is a United States citizen, and is employed as a server and busboy in Palm Beach County, Florida, where he earns $8.00 per hour. Perez says he normally finds jobs as a server 'through word of mouth' because open positions are not usually advertised. Perez asserts that temporary employees from other countries are being employed in Palm Beach County subsequent to temporary labor certifications that are issued by the DOL and the foreign workers are being paid $10.00 per hour. Perez claims that he would apply for the $10.00 per hour positions if they were advertised. Perez argues and DOL did not dispute that Perez is adversely affected by the 2008, H-2B regulations because they "(1) include a definition of "full time employment" that allows employers to offer fewer hours than previous DOL practice; (2) require only those employers who have collective bargaining agreements to contact unions in search of U.S. workers; (3) define "job contractors" in an arbitrarily broad way; (4) significantly alter DOL's method for determining whether unemployed workers are available in this country by, for example, eliminating any requirement that employers conduct a national recruitment effort; and (5) change the definition of "temporary" to allow visas to be issued for up to three years. Accordingly, Perez alleges that his prospective job opportunities are adversely affected by DOL's regulations." See PEREZId at 2.

Relying on earlier litigation in Bayou Lawn, 2014 WL 7496045, where the plaintiffs in Bayou Lawn filed suit against DOL, sought to invalidate a 2012 Rule promulgated by the Department of Labor (DOL) based primarily on DOL's lack of unilateral rulemaking authority in this area. After the Court's issuance of a preliminary injunction in Bayou Lawn was affirmed on appeal, see Bayou Lawn & Landscape Servs. v. Sec'y of Labor, 713 F.3d 1080 (11th Cir. 2013), the Court issued an Order granting summary judgment to the plaintiff. In its Order, the Court found that the INA itself contains no express delegation of authority to DOL. See Bayou Lawn, 2014 WL 7496045, at *4. The Court also found that neither 8 U.S.C. §§ 1101(a)(15)(H)(ii)(b) nor 1184(c)(1), which DOL cited as the bases of its authority to promulgate regulations impacting the H-2B program, see 76 Fed. Reg. 15,130 (March 18, 2011); 77 Fed. Reg. at 10,038, 10,043, confers rulemaking authority on DOL, either explicitly or implicitly. See Perez v. Perez, No. 3:14-cv-682 (N.D. Florida, Mar. 4, 2015) at *5. Having found that DOL lacked authority to enact the 2008 regulations at issue, the Court found that Perez is entitled to permanent injunctive relief stating that to be "entitled to injunctive relief, a plaintiff must show irreparable harm and inadequacy of legal remedies. See Odebrecht Const., Inc. v. Sec'y, Fla. Dept. of Transp., 715 F.3d 1268, 1288 (11th Cir. 2013); see also Jackson v. Motel 6 Multipurpose, Inc., 130 F.3d 999, 1007 (11th Cir. 1997) (to obtain injunctive relief, a plaintiff must show a "real or immediate threat that the plaintiff will be wronged again – 'a likelihood of substantial and immediate irreparable injury'") (quoting City of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983)); Thomas v. Bryant, 614 F.3d 1288, 1317-18 (11th Cir. 2010) (stating that to obtain a permanent injunction, a party must also show that he has prevailed in establishing the violation of the right asserted in his complaint, and that the injunction would not be adverse to the public interest if issued). See PEREZId at 6.

Effective March 5, 2015 DOL began sending notices to employers with pending filings that DOL would no longer accept new requests or process pending requests for prevailing wage determination or application for temporary labor certification in the H-2B program, posting a public announcement on the Office of Foreign Labor Certification (OFLC) website.

On Wednesday March 18, 2015 the chief U.S. District judge for the Northern District of Florida granted an unopposed motion to stay the March 4, 2015 ruling in Perez until April 15, 2015. CIS and DOL have restarted H-2B visa processing although it is uncertain how long before H-2b adjudications actually resume. CIS said it would continue to suspend premium expedited processing until further notice.

H-2B visas are often utilized by employers in tourism communities for workers in the hotel and restaurant industries as well as elsewhere.

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