Temporary Non-Agricultural Employment of H-2B Aliens in the United States

The Department of Labor (DOL) is providing notice of the judicial order enjoining DOL from implementing and enforcing the final rule (the 2012 H–2B Final Rule) for the temporary non-agricultural employment of H–2B aliens that was published on February 21, 2012. The 2012 H–2B Final Rule revised the requirements by which employers seeking H–2B workers must apply for a temporary labor certification for use in petitioning the Department of Homeland Security (DHS) to employ a non-immigrant worker in H–2B status. The effective date of the 2012 H–2B Final Rule was April 23, 2012, with an operative date of April 27, 2012. However, on April 26, 2012, the U.S. District Court for the Northern District of Florida issued an order in Bayou Lawn & Landscape Services et al. v. Solis, No. 12-00183, temporarily enjoining DOL from implementing or enforcing the 2012 H–2B Final Rule pending “the court’s adjudication of the plaintiffs’ claims.”  As a result, employers must file H–2B labor certification applications under the 2008 H–2B Rule, using those procedures and forms associated with that rule until such time as further judicial or other action suspends or otherwise nullifies the order. The preliminary injunction necessarily calls into doubt the underlying authority of DOL to fulfill its responsibilities under the Immigration and Nationality Act and DHS’ regulations to issue the labor certifications that are a necessary predicate for the admission of H–2B workers. This guidance is effective May 16, 2012.

77 Fed. Reg. 28,764 (May 16, 2012)

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