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Liberty Fund Inc. v. Chao

September 30, 2005

LIBERTY FUND, INC., PETITIONER,
v.
ELAINE CHAO, SECRETARY OF LABOR, ET AL. RESPONDENTS.



The opinion of the court was delivered by: John D. Bates United States District Judge

MEMORANDUM OPINION

Petitioners in these consolidated cases are several employers who are awaiting action on their applications for permanent labor certifications on behalf of various aliens pursuant to the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(5)(A). Also included among the petitioners are some of the affected aliens. Petitioners allege that the U.S. Department of Labor has unreasonably delayed the processing of the applications for as long as four years, and seek writs of mandamus to compel action on the applications pursuant to the Mandamus Act, 28 U.S.C. § 1361, and the Administrative Procedure Act, 5 U.S.C. §§ 555(b) and 706(1). Respondents move to dismiss or, in the alternative, for summary judgment, on the ground that petitioners have failed to satisfy the elements required for the extraordinary relief of mandamus. Petitioners have filed a cross-motion for summary judgment.*fn1 The Court held a hearing on the motions on September 9, 2005. For the reasons explained below, the Court grants respondents' motion for summary judgment and denies petitioners' cross-motion.

BACKGROUND

I. Statutory and Regulatory Background

The Immigration and Nationality Act, 8 U.S.C. §§ 1101 et seq., regulates the admission of aliens into the United States, and designates the Secretary of Homeland Security and the Secretary of State as the principal administrators of its provisions. See 8 U.S.C. §§ 1103, 1104. It sets up a multi-step process for the issuance of permanent resident cards -- commonly referred to as "green cards" -- to those aliens seeking permanent legal status in the United States based upon employment here. A significant role is assigned to the Secretary of Labor under 8 U.S.C. § 1182(a)(5)(A) to determine whether certain labor market conditions are met through issuance of a "labor certification" covering each alien seeking a work visa:

(i) In general

Any alien who seeks to enter the United States for the purpose of performing skilled or unskilled labor is inadmissible, unless the Secretary of Labor has determined and certified to the Secretary of State and the Attorney General that --

(I) there are not sufficient workers who are able, willing, qualified . . . and available at the time of application for a visa and admission to the United States and at the place where the alien is to perform such skilled or unskilled labor, and

(II) the employment of such alien will not adversely affect the wages and working conditions of workers in the United States similarly employed.

The Department of Labor has issued regulations governing labor certification at 20 C.F.R. part 656 (2004).*fn2 Pursuant to the regulations in effect at the time of these administrative proceedings, an employer seeking a labor certification was required to file an application with the appropriate state employment service office (also referred to as a state workforce agency, or "SWA"), which was required to review the application for completeness, calculate the prevailing wage, and facilitate recruitment of U.S. workers for the job opportunity. Id. § 656.21(a), (d)-(f). Following a recruitment period, the SWA would transmit the application to the appropriate regional or national "certifying officer" at the Department of Labor. Id. § 656.21(k), 656.24(a). The recruitment efforts could be reduced, subject to approval by a certifying officer, if the employer satisfactorily documented that the employer had adequately tested the labor market with no success at the prevailing wage and working conditions. Id. 656.21(i). Such applications are referred to as "reduction in recruitment,"or "RIR," applications.

The governing regulations further provide that the "Certifying Officer . . . shall make a determination either to grant the labor certification or to issue a Notice of Findings," applying certain criteria. Id. § 656.24(b). A notice of findings that does not grant the labor certification is required to state the specific bases on which the decision was made and notify the employer that it has 35 days to cure the defects or otherwise rebut the bases of the determination. Id. § 656.25(c). If a timely rebuttal is submitted, the Certifying Officer is required either to grant or deny the labor certification pursuant to the standards set forth in § 656.24(b) in a "final determination" reviewable by the Board of Alien Labor Certification Appeals. Neither the Act nor the part 626 regulations establishes a deadline for the issuance of the initial Notice of Findings or the subsequent Final Determination.

After an employer obtains a labor certification, it may then submit an immigration petition for alien worker (commonly referred to as Form I-140) to the Bureau of Citizenship and Immigration Services ("CIS"). 8 C.F.R. § 204.5. Pursuant to Department of State regulations governing issuance of visas, the alien separately must submit an application for an immigrant visa to the appropriate consular office having jurisdiction over the alien's place of residence. See 22 C.F.R. § 42.61. The number of visa allotments is limited for each employment category pursuant to 8 U.S.C. § 1153(b) and Department of State regulations.*fn3 An immigrant visa may not be issued until the consular office is in receipt of the labor certification from the Secretary of Labor. Id. § 1153(b)(3)(C).

II. Factual Background

The process for alien labor certification has been plagued by extensive delays for many years. This has resulted from the confluence of several events, as explained in detail in the declaration of William Carlson, Director of the Division of Foreign Labor Certification at the Department of Labor (Respt.'s Mem. Ex. A). In the 1997 fiscal year, Congress reduced the amount of funds provided to the states for processing alien labor certifications from $47 million to $31 million, a reduction of 34 percent. Carlson Decl. ¶ 5. At the same time, economic expansion produced record numbers of requests for alien workers in all labor certification programs: permanent, temporary professional (H-1B), temporary agricultural (H-2A), and temporary non-agricultural (H-2B). Id.

In FY 1998, Congress amended Section 245(i) of the Immigration and Nationality Act, 8 U.S.C. § 1255(i), to allow unlawful aliens to adjust their status to that of lawful permanent residency upon the payment of a penalty filing fee and the filing of an application for permanent labor certification by January 14, 1998. Pub. L. No. 105-119, 111 Stat. 2440, 2458 (Nov. 26, 1997); Carlson Decl. ¶ 6. This resulted in the receipt of over 100,000 new applications for labor certification in FY 1998 alone. Carlson Decl. ¶ 6. In 2000, Congress made the same opportunity available to unlawful aliens for the period running from December 21, 2000, through April 30, 2001, which again was conditioned upon, inter alia, the filing of an application for permanent labor certification before the deadline. Pub. L. No. 106-554, 114 Stat. 2763, 2763A-324 (Dec. 21, 2000); Carlson Decl. ¶ 7. In response, state workforce agencies received 247,406 new cases in FY 2001. Carlson Decl. ¶ 7. Even with the expiration of Section 245(i), the caseload continued to grow, as states received more applications than they could process. Id. ¶ 8.

Although the number of applications for permanent labor certification increased, Department of Labor staffing did not. In FY 1997, the regional staffing level for alien labor certification cases was the equivalent of 78 full-time employees, where it remained through FY 1999. Id. ¶ 9. At the same time, the Department of Labor was also faced with an increase in cases in other labor certification programs -- the H-1B visa program for temporary professionals and the H-2B visa program for temporary non-agricultural workers. Id. ¶¶ 10-11. H-1B applications increased over 300 percent from FY 1994 to FY 1999, and peaked at over 350,000 applications. Id. ¶ 10. H-2B applications increased by almost 400 percent between FY 1998 and FY 2003. Id. ¶ 11. The Department of Labor has a statutory duty to act on H-1B cases within seven days of receipt (8 U.S.C. § 1182(n)(1)), and pursuant to internal policy guidelines, must process H-2B cases within 60 days of receipt by an SWA. Id. ¶¶ 10-11. Thus, the Department of Labor gives precedence to H-1B and H-2B cases over applications for permanent labor certification. Id. ¶ 11. Indeed, as respondents candidly acknowledge, in order to comply with the statutory deadline for H-1B applications, "there were periods during FY 1997 and 1998 when all regional labor certification staff was required to process H-1B applications, leaving little or no time to process permanent cases." Id. ¶ 10.

In FY 1999 and FY 2000, the Department of Labor took several steps to assist its regional offices in processing permanent cases:

Automated systems were implemented to process H-1B labor certifications by fax and through an on-line web-enabled system, allowing the regional offices to assign more staff to permanent cases.

Additional funding in the amount of $500,000 was allocated to overtime and hiring temporary staff to process permanent cases.

A private company was hired to review the processing of permanent cases and make recommended program ...


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