As announced by USCIS on April 2, 2013, USCIS has temporarily suspended
adjudication of certain Form I-129 H-2B petitions for temporary non-agricultural
workers while the government considers appropriate action in response to the
Court order entered March 21, 2013 in Comite de Apoyo a los Trabajadores
Agricolas et al v. Solis, 2:09-cv-00240-LDD (E.D. Pa).

What This Means for H-2B Employers

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 come into compliance with the
Court order. Following the Court’s order, DOL announced that it can no longer
make prevailing wage determinations based on the Occupational Employment
Statistics (OES) survey four-tier wage system. DOL will, however, 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 has temporarily
suspended adjudication of H-2B petitions that are accompanied by temporary labor
certifications (TLCs) issued by DOL when those TLCs are based on OES four-tier
prevailing wage determinations. USCIS has also suspended premium processing for
all H-2B petitions until further notice. Petitioners who have already 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.
 
What This Means for Your H-2B
Petition
 
USCIS will be issuing notices on all pending petitions
in order to determine the source of the prevailing wage determination (PWD).
USCIS will not consider these notices as an "agency action" for premium
processing purposes.
 
If it is determined that your pending petition is
accompanied by a TLC that is based on a PWD utilizing applicable Collective
Bargaining Agreements, acceptable private wage surveys, or Service Contract Act
or Davis Bacon Act wages, USCIS will resume adjudication of your H-2B
petition.
 
In addition, USCIS will adjudicate H-2B petitions that are
filed with TLCs issued by DOL on or after March 22, 2013.
 
Furthermore,
USCIS will continue adjudicating H-2B petitions for non-agricultural temporary
workers on Guam if the petitions are accompanied by TLCs issued by the Guam
Department of Labor (GDOL).
 
Finally, USCIS may adjudicate an H-2B
petition if it can be resolved on issues unrelated to the OES four-tier
prevailing wage determination