As a result of a federal court ruling last week, the U.S. Citizenship and Immigration Services (USCIS) and U.S. Department of Labor (DOL) have shut down the seasonal employment work visa (H-2B) program. USCIS stopped processing H-2B petitions and the DOL stopped accepting and/or processing applications for H-2B prevailing wages and temporary labor certifications.
On March 4, 2015, in Perez v Perez, the Northern District of Florida vacated DOL’s 2008 H-2B regulations stating that the DOL lacks authority under the Immigration and Nationality Act to issue H-2B regulations. The basis for the ruling is that Congress did not give DOL formal rulemaking authority regarding the H-2B program. Rather, USCIS retains rulemaking authority over the H-2B program, with DOL playing a consulting role.
Neither agency has indicated when it will re-start processing. DOL states that it is “considering its options in light of the court’s decision” and USCIS states that it cannot process applications because H-2B “petitions require temporary labor certifications issued by DOL.”
Meanwhile, hundreds of employers are unable to utilize the H-2B program, which is critical to companies in seasonal industries, such as tourism, agriculture, forestry, and construction. There are efforts forming to help relieve the situation legislatively and through the courts.