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H-2B Interim Final Rule Expected in April |
On March 4, 2015, the federal district court in the Northern District of Florida vacated the Department of Labor's (DOL) 2008 H-2B regulations on the ground that the DOL lacks authority under the INA to issue regulations in the H-2B program. Perez v. Perez, 2015 U.S. Dist. LEXIS 27606 (N.D. Fla., Mar. 4, 2015) [Docket No. No. 3:14-cv-682] [enhanced opinion available to lexis.com subscribers]. This decision vacated the rule and permanently enjoined DOL from enforcing it. As a result, DOL immediately discontinued the processing of applications for temporary labor certification in the H-2B program.
On March 16, the DOL filed an unopposed motion to stay the March 4 order until April 15. On March 18, the district court issued an order effectively permitting DOL to restart its processing of H-2B applications under the 2008 rule immediately and to continue processing applications under that rule through April 15, 2015.
On March 17, DHS resumed adjudicating H-2B I-129 petitions based on temporary labor certifications granted before the Court’s vacatur order. It will continue these adjudications based on the temporary labor certifications granted during the stay of the court’s vacatur order. Meanwhile, DHS and DOL plan to draft and issue a joint interim final rule as soon as possible to set the operational mechanism and substantive standards for DOL to provide advice and corresponding labor certifications to DHS so that the agencies can operate the program in accordance with statutory standards (Defendant’s Unopposed Motion for Limited Relief from the Vacatur Order and Judgment). The expressed intention of the agencies is to have such a rule by April 30.
NLRB Updates Procedures for Handling Immigration Status Issues
On February 27, 2015, the General Counsel of the National Labor Relations Board (NLRB) issued a memorandum encouraging regional offices to assist undocumented victims of unfair labor practices in avoiding removal from the United States and to refer allegations of employer discrimination to the Department of Justice.
According to the memorandum, the agency should determine whether undocumented witnesses or victims of discrimination are eligible for T or U visas or deferred action, and should notify the Justice Department’s Office of Special Counsel for Immigration-Related Unfair Employment Practices in cases where employers discriminated against employees on account of their immigration status.
In Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002) [enhanced opinion], the Supreme Court held that employers could not be forced to reinstate or provide back pay to workers who lacked employment authorization, but that the NLRB could pursue other remedies for victims of unfair labor practices.
The memorandum is reprinted at Appendix A.
USCIS Issues New Form G-28
On March 6, 2015, the Department of Homeland Security issued a new Form G-28, Notice of Entry of Appearance as Attorney or Accredited Representative.
The new form includes new boxes allowing applicants or petitioners to choose whether to receive notices and documents directly, or to have them sent to their legal representative.
USCIS will not accept prior versions of Form G-28 beginning April 13, 2015.
[This is an excerpt from the April 1, 2015, issue of Bender's Immigration Bulletin.]
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