Joint DOL/DHS H-2B Interim Final Rule Near Release

"A new rule governing the H-2B labor certification process is being reviewed by the Office of the Federal Register and could be published as soon as next week, lawyers for the U.S. Department of Labor and Department of Homeland Security told a Florida federal judge Friday.

The two departments have been working feverishly to craft a joint rule after U.S. District Judge M. Casey Rodgers axed the DOL’s 2008 version in a decision last month. Supplementing an update given to the court earlier this week, the DOL and DHS said in a written statement Friday they had no objection to a court order directing the agencies to have a joint rule published by May 15, noting it would likely be finished sooner.

“Because there may be some editorial issues or other unforeseen circumstances preventing publication by the end of next week, defendants suggest that the safest course is to agree with the court’s original proposal for entry of an order directing publication by May 15, 2015,” they wrote.

The H-2B program has been in a state of uncertainty since Judge Rodgers in a March 4 ruling torpedoed the previous regulation, finding the DOL lacked the authority under the Immigration and Nationality Act to promulgate regulations impacting the H-2B program. She also struck down a 2012 rule governing the program in December, which the DOL is appealing to the Eleventh Circuit.

Judge Rodgers’ decision to vacate the 2008 rule prompted the DOL and U.S. Citizenship and Immigration Services to stop processing H-2B applications, just as employers were gearing up for the summer season, sparking an outcry from hotels and gardening associations.

Following this panic, the department asked for a stay on the 2008 regulation’s demise until April 15 to allow the program to operate while the DOL and DHS cook up the joint rule, which they had promised to issue by April 30. The judge agreed on March 18, and the program sprang back into action.

Last week, with a Wednesday deadline looming, Judge Rodgers extended the stay to May 15. Her decision came after a new H-2B employer organization called the Small and Seasonal Business Legal Center argued the labor department was poised to destroy the program by halting certifications for the visa.

Adding to the uncertainty over the H-2B program, DOL issued a notice April 17 saying that it had stopped accepting H-2B labor certifcations and prevailing wage determinations. On the same day, the agency reversed this stance in light of the stay extension, saying it would continue to process H-2B applications after all.

The underlying lawsuit was filed in December by restaurant server Gabriel Perez. He argued that the 2008 rule limited the advertising U.S. employers must do before turning to foreign workers for low-skilled job openings, which “adversely affected” his job opportunities.

Perez is represented by Gregory S. Schell, Vanessa Coe, Karla C. Martinez and Victoria Mesa-Estrada of Florida Legal Services Inc.

The government is represented by Geoffrey Forney, Benjamin C. Mizer and Leon Fresco of the U.S. Department of Justice.

The case is Perez v. Perez et al., case number 3:14-cv-00682, in United States District Court for the Northern District of Florida." - Law360, Apr. 24, 2015.