H-2B Visa Uproar: Gridlock, Chaos...or Opportunity?

H-2B Visa Uproar: Gridlock, Chaos...or Opportunity?

On March 21, 2013 the U.S. District Court for the Eastern District of Pennsylvania enjoined and vacated the 2008 Wage Rule.

As of March 22, 2013, DOL began to "hold[...]in abeyance the issuance of final determinations on most pending H-2B applications for temporary labor certification and those it received after March 22, while it considers appropriate action in response to the Court order entered March 21, 2013 in Comite de Apoyo a los Trabajadores Agricolas et al v. Solis, 2:09-cv-00240-LDD (E.D. Pa). That order granted a permanent injunction against the operation of the portion of the 2008 wage rule related to certain prevailing wage determinations and gave the Department 30 days to come into compliance with the Court order.  The Department will, however, continue to process and issue final determinations on H-2B applications for temporary labor certification where the employer's wage offer is based upon a prevailing wage not enjoined by the court order: those utilizing applicable Collective Bargaining Agreements, acceptable private wage surveys or Service Contract Act or Davis Bacon Act wage determinations. The Department intends to promulgate a revised wage rule within 30 days of the date of the Court order. This will allow the Department to resume providing employers with both prevailing wage determinations and final determinations on their H-2B applications for temporary labor certification."

USCIS issued a related notice, "temporarily suspending adjudication of most Form I-129 H-2B petitions for temporary non-agricultural workers while the government considers appropriate action in response to the Court order entered March 21, 2013 in Comite de Apoyo a los Trabajadores Agricolas et al v. Solis, 2:09-cv-00240-LDD (E.D. Pa)."

And on April 1, 2013 the U.S. Court of Appeals for the Eleventh Circuit ruled in favor of "Plaintiffs [who] challenge certain rules issued by the Department of Labor governing the employment of temporary, non-agricultural foreign workers, asserting that the Department of Labor had no authority to issue these rules. ... We conclude that plaintiffs have shown a substantial likelihood of success on the merits of their claim that DOL has exercised a rulemaking authority that it does not possess. ... DOL argues that it is harmed by having “its entire regulatory program called into question.” This is not an appealing argument. If the “entire regulatory program” is ultra vires, then it should be called into question."

What next?  Will USCIS take over the entire H-2B program?  If so, will it have to import DOL's forms, regs and procedures, or will it invent a new process entirely?  Either way, in a time of budget cuts and sequester, where will USCIS find the money and staff?

And in the short run, what will become of employers with ongoing H-2B cases pending or in the pipeline or on the horizon?  Stay tuned!