November 14, 2019

November 14, 2019

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November 13, 2019

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November 12, 2019

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Florida Court Again Strikes Down DOL H-2B Regulations

The Department of Labor lacks authority under the Immigration and Nationality Act to issue regulations in the H-2B program, a Florida federal district court has ruled, vacating the DOL’s 2008 H-2B regulations establishing standards and procedures for certifying employers’ requests to import H-2B workers and calculating the prevailing wage rates for temporary foreign workers. Perez v. Perez, No. 3:14-cv-682 (N.D. Fla. Mar. 4, 2015).

DOL therefore announced that, effective immediately, it will no longer accept or process requests for prevailing wage determinations or applications for labor certification in the H-2B program while it considers its options in light of the court’s decision.

This decision follows an earlier one issued by the same court in Bayou Lawn & Landscape Servs. v. Perez, No. 3:12cv183/MCR/CJK (N.D. Fla. Dec. 18, 2014), vacating the DOL’s proposed 2012 H-2B regulations. DOL has appealed this case. These decisions are in direct conflict with the 11th Circuit’s decision upholding DOL’s authority to promulgate H-2B regulations in La. Forestry Ass’n v. Sec’y United States DOL, 2014 U.S. App. LEXIS 2167 (3d Cir. Feb. 5, 2014). If the 11th Circuit upholds the Florida district court’s decision, then we may have an intercircuit conflict that may come before the U.S. Supreme Court.

Employers who rely upon the H-2B program for craft workers and temporary/seasonal employees (e.g., landscapers, housekeeping, ski instructors, commercial painters, welders, pipefitters, and machinists) should contact their Jackson Lewis attorney for further guidance. The DOL likely will take four to six weeks to respond to Perez and employers’ obligations to pay certain wages and to ensure the consistent application of employment policies may be impacted in the short-term.

Jackson Lewis P.C. © 2019

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About this Author

Otieno B. Ombok, Jackson Lewis, I9 Compliance Lawyer, immigrant visa petitions Attorney
Principal

Otieno B. Ombok is a Principal in the White Plains, New York, office of Jackson Lewis P.C.

Mr. Ombok specializes in all aspects of employment-based non-immigration and immigrant visa petitions. He also advises on I-9 compliance issues as well as outbound immigration matters. He has a natural facility in addressing client issues such advises both U.S. and foreign employers with regard to immigration matters. He has a natural facility in addressing client issues pertaining to healthcare visas for medical professionals,...

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Principal

Kevin Lashus is a Principal of the Austin, Texas, office of Jackson Lewis P.C. His practice is focused on corporate employment verification compliance and inbound business immigration.

Mr. Lashus has experience in providing uniquely tailored advice to assist clients in developing comprehensive employment authorization and immigration-related compliance systems—including full-scale or localized IMAGE and E-Verify implementation protocols. Given his public-sector background—first as a Texas Assistant Attorney General, then as an Assistant District Counsel with the US Department of Justice, and finally, as an Assistant Chief Counsel with the US Department of Homeland Security—he is able to prepare clients to minimize exposure during even the most complex regulatory, administrative, and civil litigation. He is Board Certified in Immigration and Nationality Law by the Texas Board of Legal Specialization.

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