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Who has authority to issue H-2B program regulations?

In the state of Florida certain industries rely upon H-2B visas to provide workers to fill jobs. According to the United States Citizenship and Immigration Services website these visas are geared specifically toward temporary workers who are qualified to perform nonagricultural work. There is currently legal action pending pertaining to this program.

At issue is what entity can issue regulations that govern the H-2B program. In December the U.S. District Court for the Northern District of Florida issued a ruling that indicated that authority did not rest with the Department of Labor. Instead, the court held the authority rests with the Department of Homeland Security. As a result of the ruling the overhaul of H-2B program rules, which occurred in 2012, was invalidated.

The overhaul was slated to do the following:

  • Return to program model to certification based where employers seeking to demonstrate the unavailability of U.S. workers or payments of prevailing wage, are concerned.
  • Define “temporary need” as a period of nine months.
  • Make the application process two parts: registration and application.
  • Provide various worker protections.

This decision contradicts a holding the U.S. Court of Appeals for the Third Circuit issued nearly a year ago. It determined that the DOL did in fact have authority to issue regulations pertaining to the H-2B program. In reaching this conclusion it cited provisions of the Immigration and Nationality Act. In making its decision the U.S. District Court for the Northern District of Florida indicated that had Congress intended the DOL have authority to make rules regarding the H-2B program, it would have explicitly provided for it.

Exactly what this recent ruling means remains to be seen. If it is appealed it is possible that the case could eventually go all the way to the Supreme Court. On the other hand however, the deferred action for parental accountability program, which was recently announced, could go a long way toward addressing the issue.

Source: BNA, “Immigration Roundup: and the H-2b Saga Continues,” Laura D. Francis, Jan. 6, 2015

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