Recent Developments Affecting the H-2B Nonimmigrant Visa Classification | Practical Law

Recent Developments Affecting the H-2B Nonimmigrant Visa Classification | Practical Law

This immigration update addresses three recent developments affecting the H-2B nonimmigrant visa classification, used by employers to employ temporary non-agricultural foreign workers. First, the Department of Labor (DOL) issued a Notice of Intent to Issue a Declaratory Order and request for comment confirming its exclusive authority to make legal and policy determinations to administer and enforce the H-2B temporary labor certification program. Second, the DOL announced its procedures for H-2B prevailing wages following the Court of Appeals for the Third Circuit decision in Comite de Apoyo a los Trabajadores Agricolas et al. v. Solis. Finally, the US District Court for the Northern District of Florida granted summary judgement to the plaintiffs in Bayou Lawn & Landscape Servs., et al. v. Perez.

Recent Developments Affecting the H-2B Nonimmigrant Visa Classification

Practical Law Legal Update 6-593-1485 (Approx. 6 pages)

Recent Developments Affecting the H-2B Nonimmigrant Visa Classification

by Practical Law Labor & Employment
Published on 06 Jan 2015 • USA (National/Federal)
This immigration update addresses three recent developments affecting the H-2B nonimmigrant visa classification, used by employers to employ temporary non-agricultural foreign workers. First, the Department of Labor (DOL) issued a Notice of Intent to Issue a Declaratory Order and request for comment confirming its exclusive authority to make legal and policy determinations to administer and enforce the H-2B temporary labor certification program. Second, the DOL announced its procedures for H-2B prevailing wages following the Court of Appeals for the Third Circuit decision in Comite de Apoyo a los Trabajadores Agricolas et al. v. Solis. Finally, the US District Court for the Northern District of Florida granted summary judgement to the plaintiffs in Bayou Lawn & Landscape Servs., et al. v. Perez.
This immigration update addresses three recent developments affecting the H-2B nonimmigrant visa classification, used by employers to employ temporary non-agricultural foreign workers. The developments are:
  • The Department of Labor (DOL) issued a Notice of Intent to Issue a Declaratory Order and request for comment confirming its exclusive authority to make legal and policy determinations to administer and enforce the H-2B temporary labor certification program.
  • The DOL announced its procedures for H-2B prevailing wages following the Court of Appeals for the Third Circuit decision in Comite' de Apoyo a los Trabajadores Agricolas et al. v. Solis.
  • The US District Court for the Northern District of Florida granted summary judgement to the plaintiffs in Bayou Lawn & Landscape Servs., et al. v. Perez.

DOL Notice of Intent

On December 17, 2014, the DOL issued a Notice of Intent to Issue a Declaratory Order and request for comment. In the Notice, the Secretary of Labor (Secretary) stated he is considering issuing a declaratory order confirming his exclusive authority to make legal and policy determinations based on his statutory and regulatory authority to administer and enforce the H-2B temporary labor certification program. The order would remove the uncertainty about this authority that was created by the Board of Alien Labor Certification Appeals' (BALCA) decision in Island Holdings LLC, 2013–PWD–00002 (Dec. 3, 2013) (en banc).
The H-2B visa classification was created under the Immigration and Nationality Act (INA) for employers to hire foreign non-agricultural workers temporarily in the US. Although primary authority for the H-2B classification rests with the Department of Homeland Security (DHS), the INA requires the DHS to consult with other agencies, including the DOL. As part of that consultation, the DHS requires the DOL to:
  • Establish procedures for establishing the temporary labor program.
  • Determine, as part of the labor certification process, the prevailing wage that employers must pay foreign workers who enter the country on H-2B visas.
The DOL's authority over and administration of the H-2B temporary labor program, including the determination of prevailing wages, has repeatedly been challenged and found lacking in two lines of cases in the Third and Eleventh Circuits. For more information on the Third Circuit cases, see Legal Updates, Employer-provided Wage Surveys Barred in H-2B Prevailing Wage Determinations: Third Circuit and DOL Has Authority to Promulgate Rules Concerning H-2B Visa Program: Third Circuit. For more information on the Eleventh Circuit litigation, see District Court Grants Plaintiffs Summary Judgement in Bayou Lawn & Landscape Services v. Perez below and Legal Update, District Court Enjoins DOL from Enforcing New H-2B Rule.
Through the Notice of Intent, the DOL seeks to gather comments on the possibility of a declaratory order to clarify the Secretary's rulemaking and policymaking authority regarding H-2B prevailing wages.
The Secretary will accept comments from the public on this Notice made on or before January 16, 2015 (30 days after the effective date) and may issue a declaratory order after consideration of all comments received in that timeframe.

DOL Announcement on H-2B Prevailing Wage Determinations

On December 23, 2014, the DOL announced procedures it will use in light of the Third Circuit decision in Comite' De Apoyo A Los Trabajadores Agricolas v. Perez (14-3557, (3d Cir. Dec. 5, 2014)). The Third Circuit found in Comite' that the DOL may not use employer-provided surveys in place of available government surveys to determine H-2B prevailing wages. For more information, see Legal Update, Employer-provided Wage Surveys Barred in H-2B Prevailing Wage Determinations: Third Circuit.
In its announcement, the DOL specified that employers with:
  • Pending prevailing wage requests based on an employer-provided survey may modify the pending request without the need to file a new request.
  • Prevailing wage determinations based on an employer-provided survey for labor certification applications that have not been filed may request a prevailing wage redetermination, but may advertise the position using the issued survey rate.
  • Prevailing wage determinations based on an employer-provided survey for filed labor certifications will receive a supplemental prevailing wage determination based on the government survey mean for the occupation.

District Court Grants Plaintiffs Summary Judgement in Bayou Lawn & Landscape Services v. Perez

On December 18, 2014, in Bayou Lawn & Landscape Services v. Perez, the US District Court for the Northern District of Florida granted summary judgement to the plaintiffs, finding that the DOL does not have rulemaking authority in connection with the H-2B program (3:12-cv-00183-MCR-CJK (N.D. Fla. Dec. 18, 2014).
The plaintiffs in this case 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 District Court 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 Eleventh Circuit (Bayou Lawn & Landscape Servs. v. Sec'y of Labor, 713 F.3d 1080 (11th Cir. 2013)). The parties filed cross-motions for summary judgement, and the District Court denied the DOL's motion and granted the plaintiffs motion.
After rejecting the DOL's arguments that the plaintiff's lacked standing and that the Court lacked subject matter jurisdiction, the District Court found that:
  • The INA does not confer rulemaking authority on the DOL in the H-2B category. Instead, 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 statute instead requires only that the DHS consult with other agencies, including the DOL, in administering the H-2B program.
  • 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.
The District Court stated that its decision comports with the interpretation of the Eleventh Circuit, but acknowledges 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).

Practical Implications

The recent H-2B developments continue to pose a challenge to employers that seek to use the H-2B nonimmigrant visa classification for temporary unskilled workers. Employers and their counsel should be thoroughly familiar with which rules they must follow while preparing H-2B applications. Employers may also consider commenting on the DOL's notice of intent regarding the DOL's rulemaking authority.