On April 26, 2012, the U.S. District Court for the Northern District of Florida granted a motion for a preliminary injunction, filed by a group of businesses and business associations, enjoining the U.S. Department of Labor (DOL) from enforcing new H-2B procedures and obligations that were to become effective on April 27, 2012. The court, in Bayou Lawn & Landscape Services v. Solis, granted the plaintiffs’ motion, citing that the DOL acted without statutory authority and violated the Administrative Procedure Act and the Regulatory Flexibility Act.
The H-2B program allows employers, on a temporary basis, to bring low-skilled foreign workers into the United States to fill temporary or seasonal jobs in industry sectors other than agriculture when qualified U.S. workers are not available and the employment of those foreign workers will not adversely affect the wages and working conditions of U.S. workers. H-2B employers must meet a complex set of procedural and substantive requirements, including an extensive labor market test to recruit qualified U.S. workers before they can hire H-2B workers.
On February 21, 2012, the DOL’s Employment and Training Administration and Wage and Hour Division published a final rule amending the H-2B regulations governing the employment of nonimmigrant workers in temporary or seasonal non-agricultural employment. The 2012 H-2B Final Rule, now on hold, includes changes to several aspects of the program to ensure that U.S. workers receive greater access to jobs, and strengthens worker protections. Among the many proposed changes, the most notable are: 1) an employer registration process with the DOL; 2) a requirement that H-2B workers and “corresponding workers” (those performing substantially the same work as H-2B workers, including U.S. workers) be treated equally, including being provided with the same rights, benefits and wages; and 3) a requirement that employers guarantee work to the H-2B and corresponding workers for at least three-fourths of the workdays in every 12-week period.