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USCIS and DOL Shut Down H-2B Program

As a result of a federal court ruling last week, the U.S. Citizenship and Immigration Services (USCIS) and U.S. Department of Labor (DOL) have shut down the seasonal employment work visa (H-2B) program. USCIS stopped processing H-2B petitions and the DOL stopped accepting and/or processing applications for H-2B prevailing wages and temporary labor certifications.

On March 4, 2015, in Perez v Perez, the Northern District of Florida vacated DOL’s 2008 H-2B regulations stating that the DOL lacks authority under the Immigration and Nationality Act to issue H-2B regulations. The basis for the ruling is that Congress did not give DOL formal rulemaking authority regarding the H-2B program. Rather, USCIS retains rulemaking authority over the H-2B program, with DOL playing a consulting role.

Neither agency has indicated when it will re-start processing. DOL states that it is “considering its options in light of the court’s decision” and USCIS states that it cannot process applications because H-2B “petitions require temporary labor certifications issued by DOL.”

Meanwhile, hundreds of employers are unable to utilize the H-2B program, which is critical to companies in seasonal industries, such as tourism, agriculture, forestry, and construction.  There are efforts forming to help relieve the situation legislatively and through the courts.

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About this Author

Rebecca B. Schechter, Greenberg Traurig Law Firm, Northern Virginia, Immigration Law Attorney
Of Counsel

Rebecca Schechter focuses her practice on business immigration and compliance, representing multi-national corporations and companies, as well as individual clients. She has experience with all areas of employment-based immigration, particularly H-1B, L-1, O-1 and E-2 petitions, as well as outstanding researcher petitions and labor certification applications. Rebecca regularly assists GT clients with global immigration matters, including business and work visas to countries in Europe, the Middle East, Asia, and Latin America. She also works on state and federal I-9 and E-Verify...