Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Grass Works Lawn Care v. Acosta

United States District Court, District of Columbia

May 3, 2019

GRASS WORKS LAWN CARE, et al., Plaintiffs,
v.
R. ALEXANDER ACOSTA, et al., Defendants.

          MEMORANDUM OPINION

          Rosemary M. Collyer United States District Judge.

         Plaintiffs 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 moot.

         I. BACKGROUND

         A. H-2B Visa Process

         “The 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).

         If the 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. § 655.61).

         The 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.

         B. 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.” Id.

         Grass 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 any.

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.

         J F 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 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.