United States District Court, District of Columbia
Rosemary M. Collyer United States District Judge.
Grass Works Lawn Care, LLC, J F Luna Construction, LLC, and
Titus Works, LLC sued R. Alexander Acosta, Secretary of the
Department of Labor, Rosemary Lahaksy, Deputy Assistant
Secretary of the Department of Labor, and William Thompson,
Administrator of the Department of Labor, in their official
capacities, challenging the denial of temporary employment
certificates in fiscal year 2018. The certificates are
necessary to receive H-2B temporary visas from the Department
of Homeland Security. Plaintiffs are small construction and
landscaping businesses which use seasonal workers to assist
with increased demand during their busy seasons. Due to the
limitations of the work force in their areas, Plaintiffs
traditionally fill their seasonal positions with workers in
the United States on temporary visas. For fiscal year 2018,
Plaintiffs argue that the Department of Labor used a
different standard to evaluate certificate applications and
unreasonably denied their applications. Defendants move to
dismiss and argue that Plaintiffs lack standing and the case
is moot because fiscal year 2018 certificates can no longer
be issued. A declaratory judgment is also inappropriate,
Defendants argue, because each application is considered
independently, and a subsequent years' application is not
affected by a prior denial. The Court agrees with Defendants
and will dismiss the case for lack of jurisdiction and as
H-2B nonimmigrant visa program permits employers to hire
foreign workers to perform temporary non-agricultural labor
or services in the United States on a one-time occurrence,
seasonal, peakload, or intermittent basis.” Compl.
[Dkt. 1] ¶ 2 (citing 8 U.S.C. §
1101(a)(15)(H)(ii)(b); 8 C.F.R. § 214.2(h)(6); 20 C.F.R.
§ 655.6(b)). Employers who wish to hire workers under
the H-2B program must first “apply for temporary
employment certification from [the Department of Labor
(DOL)].” Id. The application must include
documentation to support the number of workers requested and
the duration of their employment. Id. A Certifying
Officer in the DOL Office of Foreign Labor Certification
reviews the application and, if further information is
required, may issue a Notice of Deficiency to the employer.
Id. (citing 20 C.F.R. § 655.31).
Certifying Officer grants the certification to the employer,
then “the sponsoring employer may . . . use that
certification to file an I-129 Petition for Nonimmigrant
Worker with [United States Citizenship and Immigration
Services (USCIS)] requesting H-2B status for the number of
workers certified” by DOL. Id. ¶ 3. On
the other hand, if the Certifying Officer denies the
application, the employer “may request review of that
decision by an Administrative Law Judge (“ALJ”)
at [DOL's Board of Alien Labor Certification Appeals
(BALCA)].” Id. (citing 20 C.F.R. §
Immigration and Nationality Act permits 66, 000 H-2B
nonimmigrant visas to be issued each fiscal year.
See 8 U.S.C. § 1184(g)(1)(B), (g)(10). Up to
33, 000 H-2B visas may be issued in each half of the fiscal
year. See Id. Unused visas do not carry
over from one fiscal year to the next.
Denial of Plaintiff's Certificate Requests
Plaintiffs are construction and landscaping companies whose
work is concentrated in warmer months due to longer daylight
hours. Compl. ¶ 7. They are unable to locate and hire a
sufficient number of workers in the U.S. labor market and
must seek seasonal nonimmigrant labor to complete all of the
contracted projects during their busy season. Id.
Without access to seasonal nonimmigrant labor through the
H-2B visa program, Plaintiffs “must cancel . . .
contracts and seek other businesses to complete . . .
projects, which damages the Plaintiffs' businesses,
reputations, and ultimately harms its U.S. workers.”
Works Lawn Care, LLC (Grass Works) applied for a DOL
temporary employment certificate on October 4, 2017,
requesting certification for “40 temporary peakload
employees from January 23, 2018 to November 23, 2018.”
Id. ¶¶ 25(A), 36. On November 6, 2017, the
Certifying Officer issued a Notice of Deficiency to Grass
Works and requested additional documentation to justify the
number of workers needed, including:
Summarized monthly payroll reports for a minimum of one
previous calendar year that identify, for each month and
separately for fulltime permanent and temporary employment in
the requested occupation, the total number of workers or
staff employed, total hours worked, and total earnings
received . . . And . . . other evidence and documentation
that similarly serves to justify the increase in the number
of workers from the employer's prior application . . . if
Id. ¶ 37 (emphasis omitted). Grass Works
responded to the Notice of Deficiency by providing
“documentation that included, among other items, its
federal quarterly tax returns . . ., Texas Workforce
Commission (‘TWC') wage and staffing reports, and
summary graphs based on the federal and state quarterly
reports.” Id. ¶ 38. The Certifying
Officer denied Grass Works' application on December 20,
2017 because Grass Works failed to provide the documents
requested in the Notice of Deficiency and the documents
provided did not sufficiently address the need for the
requested number of workers. Id. Grass Works
appealed the decision to BALCA and BALCA affirmed the denial
in two decisions on January 23, 2018 and February 12, 2018.
Id. ¶¶ 38-40.
Luna Construction, LLC (J F Luna) applied for a DOL temporary
employment certificate on November 8, 2017, requesting
certification for “10 temporary peakload employees from
January 23, 2018 to November 23, 2018.” Id.
¶¶ 25(B), 41. On November 17, 2017, the Certifying
Officer issued a Notice of Deficiency to J F Luna indicating
that “it was not clear if the employer experiences a
true peak in its business during the requested dates of need,
and if the employer experiences a slowdown in business during
its nonpeak dates.” Id. ¶ 42 (internal
quotation marks and emphasis omitted). The Certifying Officer
requested additional documentation, including:
Summarized monthly payroll reports for 2016 and up-to-date
2017 that identify, for each month and separately for
full-time permanent and temporary employment in the requested
occupation, the total number of workers or staff employed,
total hours worked, and total earnings received . . . And . .
. other evidence and documentation that similarly serves ...