USCIS temporarily suspends adjudication of certain H-2B petitions

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On April 2, U.S. Citizenship and Immigration Services (USCIS) announced it temporarily has suspended adjudication of certain Form I-129 H-2B petitions for temporary non-agricultural workers while the government considers appropriate action in response to a federal district court order entered March 21 in Comite de Apoyo a los Trabajadores Agricolas et al v. Solis. This could have significant implications for contractors planning to use the H-2B temporary worker program. (Please note that this case was brought by nonbusiness p

arties against the H-2B wage-determination process set in 2008 and is separate from and predates cases brought against the 2011 H-2B wage and program rules in which several H-2B Workforce Coalition members, including NRCA, are involved.) 

The court's order granted a permanent injunction against the operation of the portion of the 2008 wage rule related to certain prevailing wage determinations and gave the Department of Labor (DOL) 30 days to comply with the court order. Following the court order, DOL announced it no longer can make prevailing wage determinations based on the Occupational Employment Statistics survey four-tier wage system. However, DOL will continue to process prevailing wage requests not subject to the court order, including prevailing wage determinations using applicable Collective Bargaining Agreements, acceptable private wage surveys, or Service Contract Act or Davis Bacon Act wages. DOL intends to comply with the court order within 30 days by promulgating a revised wage rule.

Accordingly, USCIS temporarily has suspended adjudication of H-2B petitions that are accompanied by temporary labor certifications issued by DOL when those temporary labor certifications are based on Occupational Employment Statistics four-tier prevailing wage determinations. USCIS also has suspended premium processing for all H-2B petitions until further notice. Petitioners who already have filed H-2B petitions using the premium processing service and who receive no agency action on their cases within the 15-calendar-day period will receive refunds.

USCIS will be issuing notices on all pending petitions to determine the source of the prevailing wage determination. USCIS will not consider these notices as an "agency action" for premium processing purposes.

If it is determined an employer's pending petition is accompanied by a temporary labor certification that is based on a prevailing wage determination using applicable Collective Bargaining Agreements, acceptable private wage surveys, or Service Contract Act or Davis Bacon Act wages, USCIS will resume adjudication of the H-2B petition.

In addition, USCIS will adjudicate H-2B petitions that are filed with temporary labor certifications issued by DOL on or after March 22. Finally, USCIS may adjudicate an H-2B petition if it can be resolved on issues unrelated to the Occupational Employment Statistics four-tier prevailing wage determination.

Once a revised prevailing wage rule is promulgated, USCIS will resume adjudication of all H-2B petitions. (NRCA newsletter) 


Trenton H. Cotney
Florida Bar Certified Construction Lawyer
Trent Cotney, P.A.
1211 N Franklin St
Tampa, FL 33602

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