On February 21 2012 the Department of Labour published a final rule amending the H-2B programme regulations and providing for an effective date of April 23 2012 – 60 days after the date of publication of the final rule.(1) The department clarified that the final rule would not be operative until April 27 2012 – 60 days after February 27 2012, the date on which the rule was reported to Congress, and the earliest date on which the rule could become operative by law. However, an injunction has temporarily blocked implementation of the rule.
The department said that applications postmarked on or after April 27 2012 would be adjudicated in accordance with the requirements described in the final rule. Any application filed under the previous regulation and postmarked on or after April 27 2012 would be returned, and the employer (and its agent or attorney) informed of the need to file a new application in accordance with the new H-2B final rule.
The department also noted that employers which file H-2B applications with a start date of need before October 1 2013 need not obtain the pre-approved H-2B registration under 20 CFR 655.15, and the department will continue to adjudicate temporary need by reviewing the employer's statement of temporary need in Section B of Employment and Training Administration Form 9142. Employers with H-2B applications postmarked on or after April 27 2012 with a start date of need on or after October 1 2013 must comply with all of the requirements contained in the registration process, unless the Office of Foreign Labour Certification publishes additional guidance in the Federal Register.
On April 26 2012 Judge M Casey Rogers of the Northern District of Florida granted a preliminary injunction, applicable nationwide, against implementing the new programme rule for 60 days. The US Chamber of Commerce and others had filed suit on behalf of landscaping and forestry businesses in the district court in Pensacola, Florida, arguing that the Department of Labour had overstepped its authority by requiring companies to provide immigrant workers hired for low-skilled jobs with wage guarantees and travel reimbursements. The chamber said that such policies would drive up costs for landscape companies and should be issued by the Department of Homeland Security rather than the Department of Labour. Congress has blocked implementation of the related wage rule until September 30 2012.
The Louisiana Department of Agriculture & Forestry released a statement from Commissioner Mike Strain noting that:
"These jobs are seasonal. American workers aren't willing to take a seasonal job peeling crawfish or shrimp or picking crab meat for four or five months. Consequently, employers cannot fill vacancies for temporary jobs in their peeling plants, sugar mills, forests and packing factories so they have to advertise for guest workers who are willing to do those jobs."
Strain also said:
"This injunction is a step in the right direction and I applaud the decision of Judge Rogers, who clearly recognized the economic harm to small business caused by the Department of Labor's H-2B rules. However, I know employers need more than a 60-day reprieve from the detrimental effects of these H-2B rules and the H-2B changes should be permanently withdrawn or legislatively removed by Congress."
He said that many agricultural industries could be adversely affected otherwise.
A group of business advocacy associations has filed a similar suit in federal court in Philadelphia against the department's H-2B wage rule. The issues are whether:
- the department must consider employer hardship and economic concerns during regulatory formulation; and
- the department has jurisdiction to issue H-2B regulations.
For further information on this topic please contact Rami D Fakhoury at Fakhoury Law Group PC by telephone (+1 248 643 4900), fax (+1 248 643 4907) or email ([email protected]).
(1) The new guidance, issued before the preliminary injunction, is available at www.gpo.gov/fdsys/pkg/FR-2012-04-23/pdf/2012-9612.pdf.