Employers in Guam may get their access to seasonal guestworker visas restored following an order from a federal judge.
The construction contractors claim they need the H-2B workers for a military buildup on the island territory. But U.S. Citizenship and Immigration Services has been denying their petitions without explanation, despite years of approvals based on the same facts.
“We’re at a zero percent approval rate,” Jeff Joseph of the Joseph Law Firm in Aurora, Colo., who’s representing the contractors, told Bloomberg Law Jan. 24. Prior to 2015, approval rates were close to 100 percent, according to the court.
A federal magistrate judge in August recognized the effect that denial of the visas was having but declined to order the agency to reconsider its decisions on the visa petitions.
Judge Frances M. Tydingco-Gatewood of the U.S. District Court for the District of Guam overrode that recommendation and ordered the agency to take a second look at the petitions already filed.
She also ruled that the USCIS can’t deny, without explanation, future H-2B petitions from Guam on the basis that the employers didn’t establish a temporary—as opposed to permanent—need for the workers. The agency had denied the petitions on the ground they were really seeking the workers permanently rather than just to fill gaps during a peak workload or one-time occurrence.
A USCIS representative declined to comment on the case.
H-2B visas are reserved for temporary, seasonal workers outside of agriculture. They’re popular in industries such as landscaping, construction, amusement, and hospitality.
In fact, the visas have become so popular this year that the Labor Department changed its procedures to handle the threefold increase in applications received from January 2017 to January 2018.
But “Guam is so different from the mainland” that Congress passed a law several years ago exempting the territory from the annual cap of 66,000 H-2B visas that applies to the rest of the U.S., Joseph said. “There is simply not sufficient labor” to handle the infrastructure and military base construction occurring on the island, he said.
And right now, that base construction is “critical” because of the threat posed by North Korea, he said.
But the case potentially could have applicability outside the territory, Joseph said.
The USCIS regulatory definition of what counts as a “temporary need” for foreign labor applies to the entire country, he said. And the agency’s denials of H-2B visas on this basis isn’t relegated to Guam, he said.
Depending on how the case turns out, its immediate applicability could be restricted to the territory, Joseph said. But it could inspire other employers to take their visa denials to court as well, he said.
“It takes a lot for employers to say this is such an issue that we’re going to sue,” Joseph said. Seeing a “positive result” in one lawsuit likely will spur others to bring legal challenges to USCIS decision-making, he said.
The case is Guam Contractors Ass’n v. Sessions, 2018 BL 22150, D. Guam, No. 1:16-cv-00075, 1/24/18.
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