H-2B Adjudication Resumed

by Buchanan Ingersoll & Rooney PC
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As previously reported, on March 22, 2013, USCIS temporarily suspended adjudication of most H-2B petitions while the government considered appropriate action in response to the Court Order in Comite de Apoyo a los Trabajadores Agricolas et al v. Solis. The Court Order vacated a portion of the 2008 wage methodology rule dealing with the way the DOL determines the prevailing wage when relying on the Bureau of Labor Statistics' Occupational Employment Statistics survey.  USCIS has now resumed processing of all H-2B petitions for temporary non-agricultural workers. 

The Interim Final Rule, published in the Federal Register on April 24, 2013, revises the prevailing wage methodology used by the DOL to calculate certain prevailing wages paid to H-2B workers and U.S. workers recruited in connection with an H-2B Application for Temporary Employment Certification.  The Interim Final Rule applies to H-2B work being performed on or after April 24, 2013, including by individuals currently working under an H-2B petition that was approved before April 24, 2013. Employers who have H-2B workers performing work on or after April 24, 2013, will receive a new prevailing wage determination in accordance with this Rule, if the original prevailing wage determination was based on the Occupational Employment Statistics survey four-tier wage system.

The Rule also applies to employers who have already received a temporary employment certification and have filed or will file a Form I-129 for H-2B employment with USCIS. Those employers will be responsible for providing wages that comply with this Rule for all work performed on and after the date an employer receives a supplemental prevailing wage determination from the DOL, regardless of when their petition is or was approved by USCIS. If an H-2B petition is currently pending with USCIS, the DOL will issue a copy of the supplemental prevailing wage determination to USCIS when it is issued to the employer.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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