DOL Issues Notice Of Injunction Of Temporary Non-agricultural Employment Of H-2B Aliens

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[Federal Register Volume 77, Number 95 (Wednesday, May 16, 2012)]
[Rules and Regulations]
[Pages 28764-28765]
From the Federal Register Online via the Government Printing Office []
[FR Doc No: 2012-11859]



Employment and Training Administration

20 CFR Part 655

RIN 1205-AB58

Temporary Non-agricultural Employment of H-2B Aliens in the
United States

AGENCY: Employment and Training Administration, Labor.

[[Page 28765]]

ACTION: Guidance.


SUMMARY: The Department of Labor (the Department) is providing notice
of the judicial order enjoining the Department from implementing and
enforcing the Temporary Non-agricultural Employment of H-2B Aliens in
the United States, published February 21, 2012 (the 2012 H-2B Final
Rule). The 2012 H-2B Final Rule revised the requirements by which
employers seeking H-2B workers apply for a temporary labor
certification for use in petitioning the Department of Homeland
Security (DHS) to employ a nonimmigrant worker in H-2B status. The
effective date of the 2012 H-2B Final Rule was April 23, 2012. The
operative date of the 2012 H-2B Final Rule was April 27, 2012. This
document provides guidance to the regulated community of the
injunction, by judicial order, of the 2012 H-2B Final Rule and the
continuing effectiveness of the 2008 H-2B Rule until such time as
further judicial or other action suspends or otherwise nullifies the
order in the Bayou II litigation.

DATES: This guidance is effective May 16, 2012.

FOR FURTHER INFORMATION CONTACT: For further information, contact
William L. Carlson, Ph.D., Administrator, Office of Foreign Labor
Certification, ETA, U.S. Department of Labor, 200 Constitution Avenue
NW., Room C-4312, Washington, DC 20210; Telephone (202) 693-3010 (this
is not a toll-free number). Individuals with hearing or speech
impairments may access the telephone number above via TTY by calling
the toll-free Federal Information Relay Service at 1-800-877-8339.

SUPPLEMENTARY INFORMATION: On February 21, 2012, the Department
published a Final Rule amending the H-2B regulations at 20 CFR part
655, Subpart A. 77 FR 10038, February 21, 2012. On April 23, 2012, the
Department published guidance which provided that applications filed
under Labor Certification Process and Enforcement for Temporary
Employment in Occupations Other Than Agriculture or Registered Nursing
in the United States (H-2B Workers), and Other Technical Changes, 73 FR
78020, December 19, 2008 (the 2008 H-2B Rule), must be sent to the
Office of Foreign Labor Certification's (OFLC's) Chicago National
Processing Center (CNPC) and postmarked no later than midnight April
26, 2012. The guidance also provided that applications postmarked on or
after April 27, 2012 will be adjudicated in accordance with the
requirements described in the 2012 H-2B Final Rule.
    On April 16, several plaintiffs challenged the 2012 H-2B Final Rule
in the U.S. District Court for the Northern District of Florida (Bayou
Lawn & Landscape Services, et al. v. Hilda L. Solis, et al., 3:12-cv-
00183-MCR-CJK), seeking to preliminarily enjoin the Department from
implementing the rule on the basis that the Department lacked authority
to issue the 2012 H-2B Final Rule and that the rule violated both the
Administrative Procedure Act and the Regulatory Flexibility Act. Bayou
Lawn & Landscape Services, et al. v. Solis, Case 3:12-cv-00183-MCR-CJK,
Complaint at 5 (Apr. 16, 2012). On April 26, 2012, the U.S. District
Court for the Northern District of Florida issued an order temporarily
enjoining the Department from implementing or enforcing the 2012 H-2B
Final Rule pending ``the court's adjudication of the plaintiffs'
claims.'' Bayou Lawn & Landscape Services et al. v. Solis, Case 3:12-
cv-00183-MCR-CJK, Order at 8 (Apr. 26, 2012).
    Therefore, employers must file H-2B labor certification
applications under the 2008 H-2B Rule, using those procedures and forms
associated with the 2008 H-2B Rule for which the Department has
received an emergency extension under the Paperwork Reduction Act.
However, please be aware that this preliminary injunction necessarily
calls into doubt the underlying authority of the Department to fulfill
its responsibilities under the Immigration and Nationality Act and
DHS's regulations to issue the labor certifications that are a
necessary predicate for the admission of H-2B workers. OFLC will post
additional filing guidance on its Web site at

    Signed in Washington, DC, this 11th day of May 2012.
Jane Oates,
Assistant Secretary, Employment and Training Administration.
[FR Doc. 2012-11859 Filed 5-15-12; 8:45 am]

Nonimmigrant Visas: