A federal district court ruled that the Department of Labor (DOL) may not implement a final rule relating to H-2B visas. The H-2B non-agricultural temporary worker program allows U.S. employers to bring foreign nationals into the U.S. to fill temporary non-agricultural jobs.

HR Informant previously reported on the DOL’s controversial final rule that revised the processes that employers must follow when obtaining a temporary labor certification from the DOL and when petitioning the Department of Homeland Security to employ a non-immigrant worker in H-2B status.

Many employers argued that the new rule was cumbersome, would increase costs and would decrease business competitiveness. Bayou Lawn and Landscaping Services, as well as professional associations, including the U.S. Chamber of Commerce, challenged the final rule in court.

A federal district court in Florida ruled there was a substantial likelihood that the plaintiffs would succeed on the merits of their claim that the DOL lacked authority to promulgate the rule, and issued a preliminary injunction to halt the DOL from going forward with the final rule.

The court noted that the DOL “acknowledges that it has no express congressional grant of authority to engage in legislative rule-making under the H-2B program and that such authority was vested instead in the secretary of the Department of Homeland Security.”

The DOL stated that, due to the preliminary injunction, employers should file labor certifications under the 2008 H-2B rule. The case still must be decided by the federal courts. For more information, visit the DOL’s final rule website.

Author: Gail Cecchettini Whaley

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