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Today, April 28, 2015 the U.S. Department of Labor and Homeland Security announced two new rules governing the H-2B Visa Program. The first is a new interim final rule established for the purpose of reinstating and improving the H2B program and second, a final rule to establish the program’s prevailing wage methodology. These rules are designed to protect US workers allowing them to fairly apply to the same jobs being offered to H-2B workers. The rules are also designed so that employers can easily access temporary foreign workers at a time when American workers would be unavailable. The Department of Homeland Security will provide guidance for interim transition procedures that must be followed by US employers. Together, these rules will continue to support American businesses and the country’s economy as a whole bringing continuity and stability to the H-2B program by protecting workers via an improvement in prevailing wage methodology, working conditions, and benefits that must be offered to H-2B and US workers covered by these regulations.

These rules will include numerous provisions designed to expand recruitment of U.S. workers, include “real-time recruitment efforts,” require employers to recruit former US employees first before offering jobs to temporary foreign workers, and will establish a national electronic job registry.

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On March 4, 2015, the federal district court in the Northern District of Florida ruled in Perez v. Perez that the Department of Labor (DOL) lacks authority under the Immigration and Nationality Act (INA) to issue regulations in the H-2B program. This decision vacated and permanently enjoined DOL from enforcing the 2008 H-2B regulations. DOL was forced to immediately discontinue processing applications for temporary labor certification and can no longer accept or process requests for prevailing wage determinations or applications for labor certification.

On March 5, 2015, US Citizenship and Immigration Services (USCIS) announced that it is also temporarily suspending their adjudication of Form I-129 H-2B Petitions for Temporary Non-Agricultural Workers as these petitions require temporary labor certifications as issued by DOL. The government is considering the options to continue processing these petitions following the March 4 court decision. USCIS will continue to adjudicate H-2B petitions on Guam if those petitions are accompanied by temporary labor certifications issued by the Guam Department of Labor.

On March 6, 2015, USCIS suspended premium processing on all H-2B petitions until further notice. USCIS will issue a refund on all petitions filed using the premium processing service that were not acted upon by the agency within the 15 calendar day period.

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The power of the purse has spoken and the Democrats have come out on top. On Tuesday March 3rd the Republican led House of Representatives passed a bill funding the Department of Homeland Security up until September of this year. The bill passed by a vote of 257 to 167, with 75 Republicans and 182 Democrats voting in favor of the bill. The bill included no mention of the Obama administration’s executive actions on immigration, causing a split within the Republican Party to vote on the bill. Conservative Republicans had said that if the bill did not include language opposing Obama’s executive actions they would not be supportive of the bill.

The leader of the House of Representatives, Boehner, placed the blame on Republican inability to break a Democratic filibuster in the Senate and for failing to impose conditions on the bill, a prerequisite for Republican votes. The outcome of the bill was a victory for Democrats who were able to effectively block the Republican agenda by preventing them from placing immigration restrictions on the bill.

Boehner has spent the last few months struggling to keep the Republic front united against Democrats in the Senate, who have pushed back against Republican pressure. During his re-election as speaker in January, some Republicans were re-considering voting for Boehner. Boehner still remains the subject of criticism within his own party; the only common denominator bringing the Republican Party together remains their hard line stance on immigration and border security. During a closed door caucus addressing the GOP, Boehner said that Republicans have one last card to play—Judge Hanen’s decision to halt implementation of President Obama’s executive actions on immigration. Hanen’s decision has proved a great cause for concern for Democrats. As previously reported, dozens of states came out of the shadows accusing Obama of overstepping his executive power.

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