H-2B Visa Program Shut Down

Fairfax Immigration Attorneys Address the Program Shutdown

A federal judge in Florida ordered the Department of Labor to stop enforcing its regulations on the H-2B visa program. Right now, there is no way to apply for an H-2B visa, and employers dependent on the H-2B visa program face an uncertain future.

On Wednesday, Chief Judge M. Casey Rodgers of the United States District Court for the Northern District of Florida ordered the Department of Labor to stop enforcing its H-2B regulations. The regulations dictate what an employer must do to get an H-2B visa for a worker. Chief Judge Casey found that Congress did not give the Department of Labor power to regulate the H-2B visa program, so there was no legal authority for the regulations.

The decision comes as no surprise. In 2012 in the case of Bayou Lawn and Landscape Services, et al. v. Secretary of Labor, Chief Judge Casey granted a preliminary injunction ordering the Labor Department to stop enforcing its 2012 regulations on the H-2B program. Chief Judge Casey ordered the injunction because he found that the Immigration and Nationality Act gave the Labor Department no power to issue H-2B regulations. The preliminary injunction was affirmed on appeal by the U.S. Court of Appeals for the 11th Circuit. Chief Judge Casey made the injunction permanent in December 2014.

The injunction from Bayou Lawn specifically ordered the Labor Department not to enforce the H-2B regulations published in 2012. The Labor Department obeyed the letter of the injunction but not its spirit: it resumed enforcing regulations issued in 2008, despite the court’s finding that it had no legal authority to issue any H-2B regulations at all.

The day after the permanent injunction was issued in Bayou Lawn, a busboy in Florida filed suit against the Labor Department seeking to invalidate the 2008 regulations in the case of Perez v. Perez et al. Chief Judge Casey again found that the Labor Department had no authority to regulate H-2B visas and permanently ordered the Department to stop enforcing the 2008 H-2B regulations. The same day, the Department of Labor announced on its website that it would stop processing applications for prevailing wage determinations and labor certifications for H-2B visas.

Tens of thousands of H-2B visas are issued every year, and many employees and employers depend on the program. However, right now there is no way to apply for an H-2B visa. The H-2B program was essential to the livelihoods of thousands of people, and it no longer functions. I expect the Department of Homeland Security will make necessary changes to the H-2B visa program soon. Until that happens, thousands of businesses and workers face an uncertain future.

Murray Osorio PLLC are Fairfax Immigration Attorneys dedicated to their clients and to their clients’ families. If you have an immigration matter, it’s important that you contact us as soon as possible. An experienced Fairfax Immigration Lawyer could make all the difference- call us at (240) 202-1566, or fill out our contact form.

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