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Immigration Agency in Contempt for Seasonal Visa Denials (1)

June 25, 2019, 3:55 PM; Updated: June 25, 2019, 7:10 PM

U.S. Citizenship and Immigration Services violated a January 2018 court order when it denied seasonal guestworker visas to construction contractors in Guam for the same reasons the court found invalid in the first place.

The decision is one of the first to chastise the agency’s decision-making when it comes to employment-based visas, and thus could have a broader impact beyond this specific case.

The lawsuit was filed during the Obama administration, but immigration attorneys and their employer clients have complained that the Trump administration has dramatically shifted its approach to legal immigration without going through the proper regulatory process or even acknowledging that it was departing from prior practice. Over the past year or so, companies have become more willing to litigate over increased denials, although most of those cases wind up getting resolved out of court.

“I don’t think we’re going to see contempt in other cases moving forward,” said Ian Wagreich of Hughes Socol Piers Resnick Dym in Chicago. But a lot of USCIS decisions reflect the kinds of changes “that would typically require notice and comment rulemaking,” and in that respect the decision is “broadly applicable across the board,” he said.

The USCIS doesn’t comment on pending litigation as a matter of policy, agency spokeswoman Arwen Fitzgerald said.

Labor Shortage

The class action, certified in federal district court in Guam, involves the denial of H-2B seasonal guestworker visas to companies that say they need the extra workers for the infrastructure and military base construction occurring on the island territory.

Congress already has acknowledged Guam’s labor shortage by passing a law exempting it from the annual 66,000 H-2B cap applicable to the mainland.

The companies at issue had H-2B workers approved for 10 years straight, but suddenly were told by the USCIS that they were really seeking the workers permanently rather than just to fill gaps during a peak workload or one-time occurrence.

Some of the construction contracts provided for liquidated damages of as much as $100,000 a day if the work wasn’t completed on time, said Aurora, Colo., attorney Jeffrey Joseph, who represented the contractors.

“Contractors were left in a state of panic,” he said in an email. “There were no domestic workers skilled to do masonry, heavy equipment, electrical work and other skilled construction labor.”

Judge Frances M. Tydingco-Gatewood of the U.S. District Court for the District of Guam in January 2018 banned the USCIS from denying future H-2B visas on that basis, without an adequate explanation for its departure from a decade of contrary decision-making.

Used Same Reasoning

But that’s exactly what the agency did, Magistrate Judge Joaquin V.E. Manibusan of the U.S. District Court for the District of Guam said June 25.

The USCIS can’t explain its new denials “using the same reasoning used in the prior petitions because that reasoning has previously been rejected by the Court,” Manibusan said.

In fact, he said, the agency “has never acknowledged a departure from a previous course of adjudication despite the fact that historically these petitions were not denied based upon a failure to satisfy a peakload or a one-time occurrence condition but are now regularly denied based upon a failure to meet or satisfy those conditions.”

It will be up to the chief judge as to whether to accept the contempt recommendation, Joseph said. As sanctions, the contractors have asked for attorneys’ fees, a return of their filing fees and premium processing fees, and a legal determination that the contractors have proved that their need for the H-2B workers is temporary, he said.

Outside of the H-2B context, Wagreich thinks the decision could be used to bolster cases challenging denials of H-1B specialty occupation visa extensions for workers who’ve been approved numerous times in the past while waiting for green cards to become available. There will be more people going to court over those denials, and more pushback from the courts, he said.

Jennifer Davis of Davis & Davis in Hagatna, Guam, also represented the contractors.

The Justice Department represented the agency.

The case is Guam Contractors Ass’n v. Sessions, 2019 BL 233264, D. Guam, No. 1:16-cv-00075, 6/25/19.

(Updated to include comment from the contractors' attorney, Jeffrey Joseph.)

To contact the reporter on this story: Laura D. Francis in Washington at lfrancis@bloomberglaw.com

To contact the editors responsible for this story: Simon Nadel at snadel@bloomberglaw.com; Terence Hyland at thyland@bloomberglaw.com

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