H-2B Visa Motions Winding Through Courts

STEM GradThe processing of some H-2B visa got back underway in the middle of last month, thanks to an unopposed motion for an injunction clearing filed in federal court. In effect, the ramifications of Northern District of Florida’s permission granted the Department of Labor (DOL) the ability to restart issuance of temporary labor certifications through April 15.

Under scrutiny in the case, Perez v. Perez, is the DOL’s H-2B regulatory authority under the Immigration and Nationality Act. Earlier in March, the court vacated DOL’s 2008 H-2B regulations on the grounds that the agency lacks authority to issue regulations in the visa program.

With the ruling, the Department of Homeland Security (DHS) has resumed adjudications of H-2B petitions. These petitions are based on temporary labor certifications issued by DOL.

Still, both DOL and DHS acknowledge the regulatory gap. In terms of addressing this, a release on the United States Citizenship and Immigration (USCIS) site reports the agencies intend to issue a joint interim final rule by the end of April.

The H-2B visa classification is designed for those nonimmigrant workers in certain labor conditions. Included among these are:

  • Sectors where the availability of U.S. workers fall short of industry needs
  • Sectors where employment of H-2B workers won’t adversely affect U.S. workers
  • Positions where an employer’s need for labor is only temporary

The H-2B visa program operates with a “statutory numerical limit.” The cap on the total number of individuals who can receive H-2B nonimmigrant classification during a fiscal year is currently set at 66,000. Congress has set up the program to split allocation of the program’s visas into the first- and second-half of the fiscal year. Each period allows for allocation of 33,000 of the visas.

Another feature of the H-2B visa program is that petition approval can only be given to nationals of countries eligible to participate in the program. Eligibility is determined by the Secretary of Homeland Security along with the Secretary of State.

DHS publishes the names of the eligible countries annually in a Federal Register notice. Countries named in the Federal Register notice have the H-2B eligible designation for one year.