If you are a business that relies upon temporary foreign workers to perform non-agricultural work, a recent federal court decision from Florida caused the Department of Homeland Security (DHS) to suspend its visa program in place that services this need. More specifically, the H-2B visa program that allowed for the legal employment of foreign nationals for “temporary service or labor if unemployed persons capable of performing such service or labor cannot be found in this country.” This program, in one form or another, has been in place since 1952.

A challenge was made to regulations put in place by the Department of Labor (DOL) in Perez v. Perez the federal court in the Northern District of Florida. A U.S. citizen, working as a server and busboy and making $8.00/hr, claimed that foreign nationals were being employed routinely in similar positions and being paid $10.00/hr and that he had no chance for those jobs since they were not advertised.

DOL’s regulations, put in place in 2008, were meant to make sure foreign nationals were paid on par with their U.S. counterparts and thereby prevent the creation of a cheap pool of labor. Procurement by the would-be employer of a temporary labor certificate from the DOL is a mandatory prerequisite before DHS will act upon a request for an H-2B visa. This temporary labor certificate constitutes “advice . . . on whether or not United States workers capable of performing the temporary services or labor are available and whether or not the alien’s employment will adversely affect the wages and working conditions of similarly employed United States workers.”

The problem, according to the Court, had to do with the authority of DOL in this area.  Originally, that authority was with the Attorney General but then passed to DHS in 2002. DHS then delegated to DOL the authority to “separately establish . . . procedures for administering th[e] temporary labor certification program under his or her jurisdiction.” It was this delegation that was problematic. The Court determined that no direct authority had ever been given by Congress to DOL to engage in legislative rule making (translation: establishing regulations). Thus, the regulations being utilized by DOL for this process, and relied upon DHS when handling the visa applications, were without any legal authority. DOL offered up a variety of arguments that in the absence of explicit authority, implicit authority was in place. The Court examined and rejected each argument and then issued its injunction.

Initially, DHS had to suspend all processing of H-2B applications effective March 6, 2015. Updated regulations in 2012 had suffered a similar fate and an appeal had failed. But DHS now has a plan. Working with DOL, a “joint interim final rule” to bridge this problems is to be issued on April 30, 2015. And between now and then, DHS says it will process H-2B visa applications with temporary labor certificates issued by DOL as it asked the Court to stay its injunction for 30 days.

Whether the latest effort at regulations in this area will survive a court test or not remains to be seen. Employers can breathe a temporary sigh of relief, but having a back-up plan going forward is still a good idea.

Article brought to you by:
Anthony H. Monioudis
Principal
Immigration, Labor and Employment,
Litigation and Dispute Resolution Practice Groups