DOL Stops H-2B Prevailing Wage and Labor Certification Processing after District Court Injunction | Practical Law

DOL Stops H-2B Prevailing Wage and Labor Certification Processing after District Court Injunction | Practical Law

In Perez v. Perez, the US District Court for the Northern District of Florida permanently enjoined the DOL from enforcing its 2008 H-2B regulations, holding that the DOL lacked authority to engage in legislative rulemaking under the H-2B program and enact the 2008 regulations. As a result, the DOL stopped all H-2B prevailing wage and labor certification processing. United States Citizenship and Immigration Services (USCIS) also announced that it has suspended processing of H-2B petitions while the government determines its options.

DOL Stops H-2B Prevailing Wage and Labor Certification Processing after District Court Injunction

by Practical Law Labor & Employment
Published on 09 Mar 2015 • USA (National/Federal)
In Perez v. Perez, the US District Court for the Northern District of Florida permanently enjoined the DOL from enforcing its 2008 H-2B regulations, holding that the DOL lacked authority to engage in legislative rulemaking under the H-2B program and enact the 2008 regulations. As a result, the DOL stopped all H-2B prevailing wage and labor certification processing. United States Citizenship and Immigration Services (USCIS) also announced that it has suspended processing of H-2B petitions while the government determines its options.
On March 4, 2015, in Perez v. Perez, the US District Court for the Northern District of Florida permanently enjoined the DOL from enforcing its 2008 H-2B regulations, finding that the DOL lacks authority to engage in legislative rulemaking under the H-2B program and following its own reasoning in Bayou Lawn & Landscape Services v. Perez (No. 3:14-CV-682-MCR-EMT, N.D. Fla. March 4, 2015). As a result, the DOL stopped accepting and processing all H-2B prevailing wage and labor certification applications.
As background, the plaintiffs in Bayou filed suit in April 2012, challenging the DOL's authority to issue a 2012 rule that significantly changed how the H-2B program would be administered. The US District Court for the Northern District of Florida issued a preliminary injunction on April 26, 2012, preventing the DOL from implementing the new rule (see Legal Update, District Court Enjoins DOL from Enforcing New H-2B Rule). On appeal, the injunction was upheld by the US Court of Appeals for the Eleventh Circuit (Bayou Lawn & Landscape Servs. v. Sec'y of Labor, 713 F.3d 1080 (11th Cir. 2013)).
On December 18, 2014, the district court granted summary judgment to the plaintiffs in Bayou, finding that the DOL does not have rulemaking authority in connection with the H-2B program (No. 3:12-CV-183-MCR-CJK, (N.D. Fla. Dec. 18, 2014); see Legal Update Recent Developments Affecting the H-2B Nonimmigrant Visa Classification). The district court found that:
  • The Immigration and Nationality Act (INA) does not confer rulemaking authority on the DOL in the H-2B category. Instead, the INA only requires that the Department of Homeland Security (DHS) consult with other agencies, including the DOL, in administering the H-2B program, unlike the statutory authority for the H-2A classification (used for the temporary employment of agricultural workers), which expressly grants limited regulatory authority to the DOL.
  • The DOL's rulemaking authority under the Wagner-Peyser Act, which created a national system of employment offices, does not extend to the H-2B program.
In Bayou, the district court stated that its decision comported with the interpretation of the Eleventh Circuit, but acknowledged that the decision is at odds with the Third Circuit decision in Louisiana Forestry Ass'n, Inc. v. U.S. Dep't of Labor, which found that the DOL has the authority to promulgate rules in its role as a consultant to the DHS (745 F.3d 653 (3d Cir. 2014); see also Legal Update, DOL Has Authority to Promulgate Rules Concerning H-2B Visa Program: Third Circuit).
Since the Bayou preliminary injunction, which prevented implementation of the DOL's 2012 rule, the DOL returned to processing H-2B labor certification applications under its prior 2008 rules. On December 19, 2014, Perez, the plaintiff in this suit, filed a lawsuit:
  • Challenging the DOL's enforcement of the 2008 H-2B regulations under the INA as invalid.
  • Arguing that:
    • given the determination that the DOL's authority to enforce the 2012 rule was invalid, the enforcement of the 2008 rules was invalid and arbitrary and capricious; and
    • the 2008 regulations caused irreparable injury to him.
  • Seeking a permanent injunction to prohibit the DOL from enforcing the 2008 regulations.
On March 4, 2015, the district court followed its decision in Bayou and:
  • Held that the DOL lacked authority to engage in legislative rulemaking under the H-2B program and to enact the 2008 regulations.
  • Permanently enjoined the DOL's 2008 regulations, after finding that use of the 2008 regulations will continue to injure Perez in an irreparable fashion.
In response to the permanent injunction, the DOL announced on March 4th that it would stop accepting or processing any prevailing wage or labor certification applications for the H-2B classification while it considers its options.
Furthermore, since an approved DOL labor certification is required for a successful H-2B petition to USCIS, on March 9, 2015 USCIS announced that it is temporarily suspending processing of all H-2B petitions in light of Perez and the DOL's announcement. USCIS has also suspended premium processing of H-2B petitions effective March 6, 2015 and will refund any premium processing fees received for an H-2B petition that is not processed within 15 days.