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UNITED ASSN. OF JOURNEYMEN OF THE PLUMBING & PIPEF

August 7, 1991

UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPEFITTING INDUSTRY, AFL-CIO, et al., Plaintiffs,
v.
RICHARD L. THORNBURGH, et al., Defendants



The opinion of the court was delivered by: FLANNERY

 THOMAS A. FLANNERY, UNITED STATES DISTRICT JUDGE

 Plaintiffs, two labor unions representing American construction workers, bring this action challenging certain practices of the defendant executive branch officials and agencies involving employment of nonimmigrant aliens to perform construction work on oil rigs located on the United States' Outer Continental Shelf ("OCS.") At issue is which set of statutes and regulations governs the challenged practices. Plaintiffs contend that the employment of nonimmigrant aliens is subject to the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1101 et seq., and its accompanying regulations, which allow work to be performed by nonimmigrant aliens only when no American workers are available and when the wages and working conditions of American workers will not be adversely affected. Defendants argue that the 1978 amendments to the Outer Continental Shelf Lands Act ("OCSLA"), 43 U.S.C. § 1331 et seq., contain provisions pertaining to the employment of nonimmigrant aliens that preclude application of the INA on the OCS. As discussed below, the Court finds that the INA applies to the employment of nonimmigrant construction workers on oil rigs located on the OCS.

 I. Statutory and Regulatory Background

 A. The Immigration and Nationality Act

 The INA defines an "alien" as "any person not a citizen or national of the United States." 8 U.S.C. § 1101(a)(3). Aliens are divided into two groups: "immigrants" and "nonimmigrants." For purposes of this litigation, an immigrant may be defined as an alien entering the United States with the intention of establishing permanent residence. See id. § 1101(a)(15). The INA specifies several categories of aliens who shall be considered nonimmigrants, including "an alien having residence in a foreign country which he has no intention of abandoning . . . who is coming temporarily to the United States . . . to perform . . . temporary service or labor . . ." Id. § 1101(a)(15)(H)(ii)(b). The latter category of aliens may be admitted to the United States only "if unemployed persons capable of performing such service or labor cannot be found in this country, . . ." Id.

 Immigration and Naturalization Service ("INS") regulations provide that nonimmigrants entering the United States pursuant to § 1101(a)(15)(H)(ii)(b) of the INA are granted "H-2B" visas. 8 C.F.R. § 214.2(h)(1), (h)(1)(ii)(B)(2) (1991). An H-2B visa may be issued only upon

 
(1) A certification from the Secretary of Labor stating that qualified workers in the United States are not available and that the alien's employment will not adversely affect wages and working conditions of similarly employed United States workers; or
 
(2) A notice detailing the reasons why such certification cannot be made. Such notice shall address the availability of U.S. workers in the occupation and the prevailing wages and working conditions of U.S. workers in the occupation.

 Id. § 214.2(h)(6)(iv) (1991). *fn1"

 B. The Outer Continental Shelf Lands Act

 Congress enacted the OCSLA in 1953 in order "to assert the exclusive jurisdiction and control of the Federal Government of the United States over the seabed and subsoil of the outer Continental Shelf, and to provide for the development of its vast mineral resources." S. Rep. No. 411, 83d Cong., 1st Sess. 2 (1953). *fn2" Section 1333(a)(1) of the OCSLA provides:

 
The Constitution and laws and civil and political jurisdiction of the United States are hereby extended to the subsoil and seabed of the outer Continental Shelf and to all artificial islands, and to all installations and other devices permanently or temporarily attached to the seabed, which may be erected thereon for the purpose of exploring for, developing, or producing resources therefrom, or any such installation or other device (other than a ship or vessel) for the purpose of transporting such resources, to the same extent as if the outer Continental Shelf were an area of exclusive Federal jurisdiction located within a State . . . .

 43 U.S.C. § 1333(a)(1). *fn3"

 In 1978, Congress amended the OCSLA by adding § 1356(a)(3) and (c). Outer Continental Shelf Lands Act Amendments of 1978, Pub. L. No. 95-372, § 208, 92 Stat. 629, 669-70. This section, applicable to the OCS, provides:

 
(a) Regulations
 
Within six months after September 18, 1978, the Secretary of the Department in which the Coast Guard is operating shall issue regulations which require that any vessel, ...

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