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


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DEPARTMENT OF LABOR

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.

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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 http://www.foreignlaborcert.doleta.gov/.

    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]
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