USCIS has announced that effective March 22, 2013, it temporarily suspended adjudication of most Form I-129 H-2B petitions for temporary non-agricultural workers. This development follows a Court order entered on March 21, 2013 that granted a permanent injunction against the operation of the portion of the Department of Labor’s (DOL) 2008 H2B wage rule related to certain prevailing wage determinations.
USCIS has announced that it has temporarily suspended adjudication of H-2B petitions that are accompanied by temporary labor certifications (TLCs) issued by the DOL when those TLCs are based on OES four-tier prevailing wage determinations. USCIS will be issuing notices on all pending petitions in order to determine the source of the prevailing wage determination (PWD) and if it is determined that the pending petition is accompanied by a TLC that is based on a PWD utilizing applicable Collective Bargaining Agreements, acceptable private wage surveys, or the Service Contract or Davis Bacon Act wages, USCIS will resume adjudication of the H-2B petition. In addition, USCIS will also adjudicate H-2B petitions that are filed with TLCs issued by DOL on or after March 22, 2013 and will continue adjudicating H-2B petitions for non-agricultural temporary workers on Guam if the petitions are accompanied by TLCs issued by the Guam Department of Labor (GDOL).
USCIS has also announced that premium processing of H-2B petitions will be suspended until further notice and petitioners who have already filed an H-2B petition using the premium processing service and receive no agency action on their case within the 15 calendar day period will be issued a refund. USCIS will resume adjudication of all H-2B petitions once a revised prevailing wage rule is promulgated.
The U.S. District Court for the Eastern District of Pennsylvania issued a ruling on March 21, 2013 granting a permanent injunction against the operation of one provision of the H-2B 2008 Rule. The court vacated the contested provision and ordered the DOL to come into compliance with the court’s order within 30 days.
Under the now vacated provision, prevailing wage determinations issued by DOL for a job opportunity for which the employer seeks H-2B workers must be based on the arithmetic mean of the wages of workers similarly employed at the skill level in the area of intended employment. Pursuant to that now-vacated regulation, the DOL had established a four-tier wage structure by dividing the Bureau of Labor Statistics Occupational Employment Statistics Survey (OES survey) wage applicable to the occupation in question into four tiers.
As most of its prevailing wage determinations are based on the now invalidated provision, the DOL is currently unable to issue a prevailing wage determination (The 2011 H-2B Wage Final Rule has been held up - see below).
Currently, the DOL may issue prevailing wage determinations:
- If an employer’s request for a prevailing wage determination is covered by a collective bargaining agreement, because the issuance of such determinations is unaffected by the court’s order.
- Based on the employer’s submission of a private wage survey (if approved by DOL), or its voluntary use of wages set under the Davis-Bacon Act, or the McNamara-O’Hara Service Contract Act.
The DOL has also indicated that it intends to promulgate a revised wage rule within 30 days of the date of that ruling that complies with the court’s interpretation of what the statutory and regulatory framework require.
2011 H-2B Wage Final Rule: DOL Announces Delay of Effective Date
Meanwhile, DOL has also published a notice in the Federal Register delaying the effective date of the “Wage Methodology for the Temporary Non-agricultural Employment H-2B Program” final rule (2011 H2B Wage Rule) in order to address legislation that prohibits any funds from being used to implement the Wage Rule for the remainder of fiscal year 2013. The wage rule was published on January 19, 2011 and the effective date of the rule is now delayed until October 1, 2013.
DOL has indicated that in light of the anticipated enactment of the Consolidated and Further Continuing Appropriations Act, 2013 which establishes DOL’s appropriations through September 30, 2013, and also continues the prohibition of the expenditure of the DOL’s appropriated funds to implement, administer, or enforce the Wage Rule through September 30, 2013, DOL has decided that it must delay the effective date of the Wage Rule.
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