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DOL Affirms Previous H-2B Program Rule In Force

On May 16, the U.S. Department of Labor published its official “guidance” on the H-2B guestworker program rule, affirming that—pending further action—DOL accepts the April 26 preliminary injunction against implementing the rule and acknowledges that “employers [of H-2B workers] 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.” DOL’s guidance notes that the North District Court of Florida’s preliminary injunction “calls into doubt the underlying authority of the Department to fulfill its responsibilities under the Immigration and Nationality Act and [the Department of Homeland Security’s] regulations to issue the labor certifications that are a necessary predicate for the admission of H-2B workers.”

There had been some concern, in view of the preliminary injunction’s questioning DOL’s right to administer the program, that DOL might attempt to suspend the entire H-2B program; the May 16 “guidance” indicates that DOL has not attempted to take that course.

FRA is litigating both DOL’s H-2B Program Rule and the associated Wage Rule, on behalf of FRA member forest landowners and reforestation contractors dependent on reasonable access to guestworkers from Mexico and Central America, in alliance with other industries dependent on guestworkers in other trades. The disputed Program Rule would have imposed a raft of inflexible requirements in terms of work and travel itineraries, housing, and other matters logistically impossible for a reforestation contractor to comply with.