Guam Contractors Say Feds Ignoring Order Over H-2B Visas

By Kevin Penton

Law360 (November 2, 2018, 5:30 PM EDT) — The federal government is flouting a court order entered in a class action that it not base H-2B visa petition decisions for workers entering Guam solely on a company’s alleged failure to show it has a temporary or peak need for them, a group of Guam-based companies and a contractors trade association told a federal court Thursday.

The District of Guam should sanction the government by ordering it to refund members of the class the $1,225 they spent on their visa petitions, as officials are disregarding a preliminary injunction entered in the case in January that barred U.S. Citizenship and Immigration Services from conducting the practice, several Guam-based companies and the Guam Contractors Association said in a contempt motion.

They assert that the government has failed to comply with the preliminary injunction, by either not adjudicating their petitions or by issuing “burdensome” requests for evidence based on temporary need petitions, according to Thursday’s motion.

“The fact that the USCIS continues to veto the judge by issuing multiple requests for evidence and denials on the issue of temporary need shows a complete lack of respect for the court and the judicial process,” Jeff Joseph, an attorney representing the plaintiffs, told Law360 on Friday. “The plaintiffs continue to be disappointed and shocked by the agency’s lack of regard for justice, and also for the economy and people of the territory of Guam.”

The plaintiffs note that from January through the end of September, petitions that fall within the National Defense Authorization Act have largely been approved, while nearly none of the petitions that fall outside the act and are members of the class has been, according to the motion.

“That only four non-NDAA petitions have been approved since the injunction was issued over eight months ago, whereas nearly 100 percent of NDAA petitions have been approved, is clear evidence that defendants have not taken every reasonable step to assure compliance with the injunction,” Thursday’s motion said.

Several class members and the businesses and association filed suit in October 2016, alleging that, starting in 2015, USCIS began rejecting their H-2B visa petitions for work during exceptionally busy periods at a rate “approaching 99 percent.”

The businesses alleged USCIS shot down their H-2B applications despite “significant evidence” of peak-load or one-time need. They said the agency’s findings focused on a determination that the companies’ need wasn’t a “peak-load or one-time occurrence” since the workers “would become part of the plaintiffs’ regular operations.”

The H-2B visa program allows employers to bring in foreign workers for temporary nonagricultural work and is used by industries such as hospitality and landscaping. The suit argued that Guam, in particular, has counted on foreign workers to boost the remote island’s workforce.

U.S. District Judge Frances M. Tydingco-Gatewood certified the class in March, after entering the preliminary injunction in January, according to court documents.

Counsel for the government could not be reached for comment on Friday.

The employers are represented by Jeff Joseph of the Joseph & Hall P.C. and Jennifer C. Davis of Davis & Davis PC.

The government is represented by Heather Sokolower and Vinita B. Andrapalliyal of the U.S. Department of Justice Civil Division.

The case is Guam Contractors Association et al. v. Sessions et al., case number 1:16-cv-00075, in the U.S. District Court for the District of Guam.

–Additional reporting by Steven Trader. Editing by Michael Watanabe.