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On April 29, 2015, the US Departments of Labor and Homeland Security jointly published new regulations governing the H-2B Temporary Non-agricultural Labor Certification Program. The new regulations are effective immediately.
To read the Department of Labor's news release on the regulations, see here. The rules are described in the press release as follows: "These rules strengthen protections for U.S. workers, providing that they have a fair shot at finding and applying for jobs for which employers are seeking H-2B workers, while also providing that employers can access foreign workers on a temporary basis when U.S. workers are not available. The rules include several provisions to expand recruitment of U.S. workers, including more real-time recruitment efforts, requiring employers to offer work to former U.S. employees first, and establishing a national electronic job registry. They strengthen worker protections with respect to wages, working conditions, and benefits that must be offered to H-2B and U.S. workers covered by these regulations. They also establish the prevailing wage methodology for the H-2B program, reinstating the use of employer-provided surveys to set the prevailing wage in certain limited situations." The Interim Final Rule in full is here. In summary, the rule proposes the following changes:
DOL also proposed new rules regarding wage determinations for H-2B worker. The rules establish that if there is no valid collective bargaining agreement, the prevailing wage will be the mean wage for the occupation in the pertinent geographic area derived from the Bureau of Labor Statistics Occupational Employment Statistics survey, unless the H-2B employer meets the conditions for requesting that the prevailing wage be based on an employer-provided survey. The full text of the H-2B wage rule is here.
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 The US Department of the Treasury's Office of Foreign Assets Control (OFAC) issued new and updated Frequently Asked Questions (FAQs) pertaining to the Cuban Assets Control Regulations (see earlier blog posting here). The new FAQs are explanatory (i.e. they do not have the force of law) and address issues such as: - What travel is permitted to Cuba (travel for tourism is expressly excluded); - How much a person can spend in Cuba; - The value of goods ($100 only) that a person can import to the US from Cuba; - Travel agency services; - Sending money to Cuba; - Banking; - Trade with Cuba; - Telecommunications. For a copy of the FAQs, see here.  On April 15, 2015, the federal district court in the Northern District of Florida issued an order effectively permitting the U.S. Department of Labor (DOL) to continue issuing temporary labor certifications under the H-2B visa program through May 15, 2015. As a result, DOL will continue to process temporary labor certification applications under its 2008 H-2B regulations through May 15, 2015.
The background to this decision was a ruling in a case of Perez v. Perez in March 2015. In this ruling, the Florida district court nullified the DOL’s 2008 H-2B regulations, saying the DOL lacks authority under the Immigration and Nationality Act to issue regulations in the H-2B program. Consequently, USCIS temporarily stopped processing H-2B petitions and DOL stopped accepting H-2B prevailing wage and labor certification applications. (We blogged about this decision here.) USCIS resumed H-2B processing on March 17, but new applications were delayed because employers could not complete the required DOL steps before filing with USCIS. Premium Processing of H-2B cases remained suspended, and will resume today, April 20, 2015. Premium Processing allows employers to request faster processing of certain employment-based petitions and applications. The current filing fee for Form I-907 is $1,225. NOTE: USCIS has reached the cap on H-2B petitions for fiscal year 2015. March 26, 2015 was the final receipt date for new H-2B worker petitions requesting an employment start date before October 1, 2015. Any petitions received after march 26 that request a start dat before October 1 are being rejected by USCIS. See here for more details. U.S. Citizenship and Immigration Services (USCIS) received almost 233,000 H-1B applications in the first week of April, 2015. This is approximately 35% more than were filed in the same period last year. With only 85,000 H-1B visas available, nearly two-thirds of all applications will be rejected.
By law, the number of H-1B visas is capped at 65,000 under the general category, with an additional 20,000 for applicants with advanced degrees. Since there were far more applications received than are visas available, USCIS uses a computer-generated lottery system to decide which applications are accepted. USCIS provides premium processing service for employers that pay an additional $1225 fee when filing the applications. This service guarantees a 15-calendar-day processing time. For H-1B petitions that are not subject to the cap and for any other visa classification, the 15-day processing period for premium processing service begins on the date that USCIS receives the request. However, for cap-subject H-1B petitions, including advanced degree exemption petitions, the 15-day processing period set by 8 CFR 103.7(e)(2) will begin on April 27, 2015, regardless of the date on the Form I-797 receipt notice, which indicates the date that the premium processing fee is received. For more information, check back to this blog, or you can subscribe to updates on the USCIS website. |
AuthorElaine Martin has been practising US and global immigration law since 1997. She is an immigrant herself (from Ireland), so has a special understanding of the legal and emotional challenges involved in relocating to a new country. 
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