DOL Releases Emergency H-2B Guidance on Implementing the 2016 DOL Appropriations Act

Congress passed a spending package to fund federal agencies through September 30, 2021. If signed into law, the omnibus bill and COVID-19 relief package will extend certain immigration programs set to expire, grant authority to DHS to increase the number of H-2B visas, and provide COVID-19 relief to mixed-status families.

An advance copy was made available of a new DOL final rule that adopts, with changes, the interim final rule published on October 8, 2020, making changes to the computation of prevailing wage levels. The final rule is currently pending placement on public inspection and publication in the Federal Register and is expected to take effect 60 days from the date of publication. The effective date of the rule will likely be further extended as President-Elect Biden’s transition team has indicated that his administration will issue a memorandum on January 20 delaying implementation of “midnight regulations” (i.e., regulations issued since the election but not yet effective) for 60 days. Groups that previously challenged this regulation are also expected to continue to litigate the revised final rule.

DHS published a notice of the 81 countries whose nationals are eligible to participate in the H-2A program and the 80 countries whose nationals are eligible to participate in the H-2B program. The designations are effective January 19, 2021, and shall be without effect after January 18, 2022. Changes include adding the Philippines to the list of countries eligible to participate in the H-2B program, no longer designating the Independent State of Samoa and Tonga as eligible countries for the H-2A and H-2B programs, and no longer designating Mongolia as an eligible country for the H-2A program.

On Monday, in a lawsuit filed by AILA and members of AILA’s Board of Governors on behalf of 17 organizational and individual plaintiffs, a federal judge… 

Finding that defendants “failed to show there was good cause to dispense with the rational and thoughtful discourse that is provided by the APA’s notice…