Early in March, U.S. Citizenship and Immigration Services (USCIS) announced the agency temporarily suspended adjudication of Form I-129 H-2B petitions. The decision to suspend adjudication of H-2B petitions follows a recent court decision from a federal court in Florida. In the recent decision, the court found that the Department of Labor, under the Immigration and Nationality Act, does not have authority to promulgate legislative regulations regarding the processing of H-2B petitions.

H-2B petitions require what is known as a foreign labor certification. A foreign labor certification is designed to “assure that the admission of foreign workers to work in the United States on a permanent or temporary basis will not adversely affect the job opportunities, wages and working conditions of American workers.” The Department of Labor is responsible for processing foreign labor certifications.

As a result of the decision, the Department of Labor “is no longer accepting or processing requests for prevailing wage determinations or applications for temporary labor certifications in the H-2B program.” USCIS followed the DOL’s decision to stop the processing of H-2B petitions and is considering the appropriate response following the court’s decision. Until further notice, H-2B petitions will no longer be processed. H-2B petitions for workers on Guam, however, will continue to be processed if accompanied by a labor certification issued by the Guam Department of Labor.

What is an H-2B Visa?

The H-2B visa program allows employers to hire foreign workers to fill temporary nonagricultural jobs. Notably, for a worker to qualify under the H-2B visa program, the employer’s need must be considered temporary. A temporary need is one that is a:

• One-time occurrence;

• Seasonal need;

• Peak load need; or

• Intermittent need.

H-2B petitions may only be approved for nationals of countries that the Secretary of Homeland Security has designated, with the concurrence of the Secretary of State, as eligible to participate in the H-2B program. The maximum period of stay under an H-2B visa is three years, which can only be extended in increments of up to one year at a time. An experienced immigration attorney can help you understand if you qualify for an H-2B visa.

USCIS Already Reached Midyear Cap on H-2B Visa Petitions

On 26 January 2015, USCIS had already a sufficient number of petitions to reach the congressionally mandated H-2B cap for workers authorized to obtain H-2B status for the first half of the fiscal year 2015. While individuals exempt from the cap would normally be allowed to continue submitting H-2B petitions, the recent court decision prevents USCIS from continuing to accept these H-2B petitions.

Contact an Illinois Immigration Attorney

If you have any questions regarding the recent court decision affecting H-2B petitions, a Chicago immigration attorney at Katz Law Office, Ltd. can help. We will keep you updated on any changes to the H-2B visa program.

At Katz Law Office, Ltd., our Illinois immigration attorneys have experience in variety of immigration services, including visa assistance and deportation defense. Contact our trained Chicago immigration attorneys today for a free consultation and case evaluation. We have several offices located throughout the Chicagoland area.