DOL Changes Effective Date of 2012 H-2B Final Rule; Preliminary Injunction Granted

On February 21, 2012, the Department of Labor published a final rule amending the H-2B program regulations and providing for an effective date of April 23, 2012, which is 60 days after the date of publication of the final rule. The Department clarified that the final rule would not be operative until April 27, 2012, which is 60 days after February 27, 2012, the date on which the rule was reported to Congress, and the earliest date on which the rule can become operative by law. An injunction has temporarily blocked implementation, however.

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 current regulation that is postmarked on or after April 27, 2012, will be returned, and the employer (and its agent or attorney) informed of the need to file a new application in accordance with the provisions of the new H-2B final rule.

The Department also noted that employers who file H-2B applications with a start date of need before October 1, 2013, do not need to 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 the ETA 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 the requirements contained in the registration process unless the Office of Foreign Labor Certification publishes additional guidance in the Federal Register.

Meanwhile, on April 26, 2012, Judge M. Casey Rogers of the Northern District of Florida granted a preliminary injunction, applicable nationwide, against implementing the new program rule for 60 days. The U.S. Chamber of Commerce and others had filed suit on behalf of landscaping and forestry businesses in the U.S. District Court in Pensacola, Florida, arguing that the Department of Labor overstepped its authority by requiring companies to provide immigrant workers hired for low-skilled jobs wage guarantees and travel reimbursements. The Chamber said that such policies will drive up costs for landscape companies and should be issued by the Department of Homeland Security rather than Labor. 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 “[t]hese jobs are seasonal. Americans 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.” Mr. 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 whether the Department has jurisdiction to issue H-2B regulations.

U.S. Citizenship and Immigration Services has postponed a stakeholder engagement scheduled for May 2, 2012, on “Temporary Need in the H-2B Context.” A new date has not yet been set.

See also:

• Employers with questions about the H-2B process may e-mail them to H-2B.Regulation@dol.gov.
• The Department said it will provide responses in the form of Frequently Asked Questions (FAQs) on its website. The new guidance, issued before the preliminary injunction, is available as PDF.