"Employers using the H-2A and H-2B guestworker programs may get some relief from government-caused delays following a recent federal court decision holding that the Labor Department must follow the statutory and regulatory time frames for issuing notices and certifications.
In International Labor Management Corp. v. Perez, 2014 BL 115527, No. 1:14-cv-00231 (M.D.N.C. April 25, 2014), Judge William L. Osteen of the U.S. District Court for the Middle District of North Carolina said the DOL has to send a notice of acceptance or deficiency within seven days of receiving a labor certification application. And the agency must decide whether or not to grant the certification at least 30 days before the employer's stated date of need for the workers, the judge ruled.
In other words, the law governing the H-2A agricultural guestworker program and the H-2B low-skilled, nonagricultural guestworker program makes those time frames mandatory--no ifs, ands or buts. And just because the law doesn't say what might happen to the DOL if it doesn't comply doesn't mean those time frames are just "guidelines," Osteen said.
Employers using these programs can be stymied by delays because of the short time between when they legally can begin the process of obtaining the temporary visas and when they need the guestworkers to start. The process also is complicated by the need to apply first to the DOL for labor certification—showing that no U.S. workers are available for the jobs and employing guestworkers won't harm U.S. workers' wages and working conditions—and then to U.S. Citizenship and Immigration Services for the visas.
Speaking during an April 30 teleconference hosted by the Citizenship and Immigration Services Ombudsman, Washington attorney Leon Sequeira said International Labor Management Corp. is a "very important" decision for employers because it requires the DOL to speed up that process." - Laura D. Francis, Bloomberg BNA, May 20, 2014.