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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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 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.  The U.S. Citizenship and Immigration Services (USCIS) announced today that it is temporarily suspending adjudication of Form I-129 H-2B petitions for temporary non-agricultural workers while the government considers the appropriate response to the court order entered March 4, 2015, in Perez v. Perez, No. 3:14-cv-682 (N.D. Florida, Mar. 4, 2015).
Due to this decision, starting March 4, the Department of Labor (DOL) stopped accepting or processing requests for prevailing wage determinations or applications for temporary labor certifications in the H-2B program. DOL is considering its options in light of the court’s decision. (See DOL Office of Foreign Labor Certification for more details.) Because H-2B petitions require temporary labor certifications issued by DOL, USCIS has also temporarily suspended adjudication of H-2B petitions. USCIS will continue adjudicating H-2B petitions for non-agricultural temporary workers on Guam if the petitions are accompanied by temporary labor certifications issued by the Guam Department of Labor. Starting March 6, 2015, USCIS has also suspended premium processing for all H-2B petitions until further notice. If a petitioner has already filed H-2B petitions using the premium processing service and the agency did not act on the case within the 15-calendar-day period, USCIS will issue a refund. A U.S. employer who can demonstrate a need for non-agricultural workers (recurring, seasonal, or peak-load) may apply for the H-2B program. Examples of H-2B workers include seasonal constructions workers, landscape workers, and hospitality staff. Please contact us for more information of the H-2B program and alternatives.  USCIS and the Department of Homeland Security, in consultation with the Department of State, has added the Czech Republic, Denmark, Madagascar, Portugal, and Sweden to the list of countries whose nationals are eligible to participate in the H-2A and H-2B Visa programs for the coming year.
The H-2A and H-2B Visa programs allow U.S. employers to bring foreign nationals to the United States to fill temporary agricultural and non-agricultural jobs, respectively. USCIS only approves H-2A and H-2B petitions for nationals of certain countries: those which Secretary of Homeland Security has designated as eligible to participate in the programs. USCIS may approve H-2A and H-2B petitions for nationals of countries not on the list if it is determined to be in the interest of the United States. Effective Jan. 18, 2015, nationals of the following 68 countries are eligible to participate in the H-2A and H-2B Visa programs: Argentina Fiji Moldova Slovenia Australia Grenada Montenegro Solomon Islands Austria Guatemala Nauru South Africa Barbados Haiti The Netherlands South Korea Belize Honduras Nicaragua Spain Brazil Hungary New Zealand Sweden Bulgaria Iceland Norway Switzerland Canada Ireland Panama Thailand Chile Israel Papua New Guinea Tonga Costa Rica Italy Peru Turkey Croatia Jamaica The Philippines Tuvalu Czech Republic Japan Poland Ukraine Denmark Kiribati Portugal United Kingdom Dominican Republic Latvia Romania Uruguay Ecuador Lithuania Samoa Vanuatu El Salvador Macedonia Serbia Estonia Madagascar Slovakia Ethiopia Mexico See the CIS Press Release here. |
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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