Comite De Apoyo a Los Trabahadores Agricolas v. Solis, 083010 PAEDC, 09-240

Docket Nº09-240
Opinion JudgeLouis H. Pollak J.
Party NameCOMIT
Case DateAugust 30, 2010
CourtUnited States District Courts, 3th Circuit, United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)

COMITÉ DE APOYO A LOS TRABAJADORES AGRÍCOLAS, et al., Plaintiffs,

v.

HILDA SOLIS, et al., Defendants.

No. 09-240

United States District Court, Eastern District of Pennsylvania

August 30, 2010

OPINION

Louis H. Pollak J.

Plaintiffs Comité de Apoyo a los Trabajadores Agrícolas (“CATA”), Pineros y Campesinos Unidos del Noroeste (“PCUN”), Alliance of Forest Workers and Harvesters (“the Alliance”), and Salvador Martinez Barrera challenge various regulations concerning the H-2B worker program promulgated in concurrent rulemakings by two defendant federal agencies, the Department of Labor (“DOL”) and the Department of Homeland Security (“DHS”). The case is now before this court on the parties’ cross-motions for summary judgment (docket nos. 49 & 56). Also pending are (1) plaintiffs’ motion to supplement the administrative record and take judicial notice (docket no. 48), and (2) plaintiffs’ request for a preliminary injunction (docket no. 58).

I. Factual Background

The regulations at issue in this case, which took effect on January 18, 2009, deal with so-called H-2B workers. As defined by the Immigration and Nationality Act (“INA”), an H-2B worker is an alien who “ha[s] a residence in a foreign country which he has no intention of abandoning who is coming to the United States to perform [non-agricultural] temporary service or labor if unemployed persons capable of performing such service or labor cannot be found in this country.” 8 U.S.C. § 1101(a)(15)(H)(ii)(b).1

The INA provides the Attorney General with authority to issue regulations concerning the admission of H-2B workers to the United States. See Id . § 1184(a)(1). In particular, the INA mandates that “[t]he question of importing any alien as a nonimmigrant under subparagraph (H). . . (excluding nonimmigrants under section 1101(a)(15)(H)(i)(b1) . . .) in any specific case or specific cases shall be determined by the Attorney General, after consultation with appropriate agencies of the Government [including DOL] upon petition of the importing employer.” Id. § 1184(c)(1). The Homeland Security Act of 2002 transferred this authority from the Attorney General to the Secretary of Homeland Security. See 6 U.S.C. § 236(b).

DOL also plays a key role in the admission of H-2B workers. Pursuant to 8 C.F.R. § 214.2(h)(6)(iii)(A), “[p]rior to filing a petition . . . to classify an alien as an H-2B worker, the [petitioning employer] shall apply for a temporary labor certification with the Secretary of Labor.” This certification constitutes “advice . . . on whether or not United States workers capable of performing the temporary services or labor are available and whether or not the alien’s employment will adversely affect the wages and working conditions of similarly employed United States workers.” Id. DHS, meanwhile, possesses the statutory authority to sanction “substantial failure[s by employers] to meet any of the conditions of the petition to admit or otherwise provide status to a nonimmigrant worker . . . or a willful misrepresentation of a material fact in such petition.” 8 U.S.C. § 1184(c)(14)(A). The Secretary of DHS has delegated this authority in part to the United States Customs and Immigration Service (“USCIS”). See Defs.’ Mem. at 6. DHS’s authority was, however, partially delegated to DOL pursuant to DHS’s 2009 rules and in accordance with 8 U.S.C. § 1184(c)(14)(B). 2

The DOL procedures governing H-2B applications have historically been different, and less formal, than the procedures addressing H-2A agricultural applications under 8 U.S.C. § 1101(a)(15)(H)(ii)(a); until 2009, DOL has regulated H-2B applications via a series of General Administration Letters (“GALs”) and Training and Employment Guidance Letters (“TEGLs”), which were promulgated without notice and comment. See Pls.’ Mem. at 4-5; Defs.’ Mem. at 6. Under that prior regime, in order to receive DOL certification, employers submitted applications for H-2B workers to the applicable State Workforce Agency (“SWA”). Pls.’ Mem. at 5; Defs.’ Mem. at 7. Under the most recent TEGL, issued in 2006, an employer’s application had to include, inter alia, (1) “[d]ocumentation of any efforts to advertise and recruit U.S. workers prior to filing the application, ” (2) “[a] detailed statement explaining (a) why the job opportunity and number of workers being requested reflect a temporary need, and (b) how the employer’s request . . . meets one of the standards of a one-time occurrence, a seasonal need, a peakload need, or an intermittent need, ” and (3) “[s]upporting evidence and documentation that justifies the chosen standard of temporary need.” A 148. 3

In reviewing the application, the SWA would “determine the prevailing wage.” Id. at 149. Before 2005, prevailing wage determinations were primarily made under the Davis-Bacon Act (“DBA”), 40 U.S.C. §§ 276a et seq., and McNamara-O’Hara Service Contract Act (“SCA”), 41 U.S.C. § 351, but a 2005 wage guidance letter, issued by DOL without notice and comment, altered the policy such that, in the absence of any applicable collective bargaining agreement (“CBA”), DOL’s main source of data became the Occupational Employment Statistics (“OES”) Survey. Pls.’ Mem. at 6-7. Employers were also allowed to submit their own data, including DBA and SCA wage rates. See A 79.

The SWA’s review extended to other issues as well. “If the job offer [was] less than fulltime, offer[ed] to pay a wage below the prevailing wage, contain[ed] unduly restrictive job requirements or a combination of duties not normal to the occupation, or ha[d] terms and conditions of employment which otherwise inhibit[ed] the effective recruitment . . . of U.S. workers . . ., or [was] otherwise unacceptable, the SWA . . . advise[d] the employer to correct the deficiencies.” Id. at 150. Below-prevailing wage applications could also not be accepted. Id. at 149. If the offer passed muster, the SWA would recruit U.S. workers for the job by (1) placing it into its “job bank system for 10 calendar days, ” (2) referring “qualified applicants” to the posting, and (3) instructing the employer to “advertise the job opportunity in a newspaper of general circulation for 3 consecutive calendar days or in a readily available professional, trade or ethnic publication.” Id. at 150. As part of domestic recruitment efforts, employers were also required to contact “union and other recruitment sources, appropriate for the occupation and customary in the industry” and to show that these sources were “either unable to refer qualified U.S. workers or [were] non-responsive to the employer’s request.” Id.

In addition, the SWA would forward all of the appropriate information to a DOL certifying officer, who would “determine whether there are other appropriate sources of workers from which the employer should have recruited.” Id. at 151. The certifying officer further decided to certify or reject the application, based on whether (1) “[t]he nature of the employer’s need is temporary, ” (2) “[q]ualified U.S. workers are available, ” (3) U.S. workers’ “wages and working conditions” would be “adversely affect[ed], ” and (4) “[t]he job opportunity contains requirements or conditions which preclude consideration of U.S. workers or which otherwise prevent their effective recruitment.” Id. at 151-52. The certifying officer’s decision was “the final decision of the Secretary of Labor” and could not be appealed within DOL, but was “advisory to the USCIS.” Id. at 153. The employer could then “submit countervailing evidence directly to the USCIS” to challenge DOL’s decision. Id.

On May 22, 2008, DOL issued a notice of proposed rulemaking (“NPRM”) concerning the certification process for the H-2B program, citing as justification for the proposed changes its workload and descriptions of the existing process “as complicated, time-consuming, inefficient, and dependent upon the expenditure of considerable resources by employers.” 73 Fed. Reg. 29942, 29944 (May 22, 2008). Comments were due on July 7, 2008. See Pls.’ Mem. at 7 (citing a refusal to extend that deadline). The new regulations were published on December 19, 2008. See 73 Fed. Reg. 78020 (Dec. 19, 2008). Meanwhile, DHS promulgated an NPRM regarding H-2B visas on August 20, 2008. See 73 Fed. Reg. 49109 (Aug. 20, 2008). DHS’s new regulations also became final on December 19, 2008. See 73 Fed. Reg. 78104 (Dec. 19, 2008).

The new regulations contain numerous significant changes from the prior regime. For instance, a DOL certification must now accompany petitions for the admission of H-2B workers, and although the new regulations create an intra-DOL appeals process, there is no external procedure for challenging the denial of a certification by DOL. See 8 C.F.R. § 214.2(h)(6)(iv)(A); 20 C.F.R. § 655.33(a). Moreover, the centerpiece of the certification process is no longer an SWA assessment but rather an attestation filed by the employer stating that it has fulfilled the processes and obligations imposed on it by the regulations. 20 C.F.R. § 655.15(b). Attestations must generally be filed by each employer, but where a job contractor is involved, DOL’s practice allows the contractor – and not the employers who will utilize H-2B labor – to file for a certification. See Defs.’ Mem. at 50.

As part of the attestation process, employers must, inter alia, (1) maintain a job posting with the relevant SWA for ten days, (2) run a newspaper advertisement on two days, including one Sunday, in a local, general-circulation newspaper (unless another sort of publication “is the most likely source to bring responses”), and (3) contact the applicable union if a collective bargaining agreement covers the job. 20 C.F.R. §§ 655.15(d)(2)-(4), (e), & (f). Employers are also required to attest that, among other things, “[t]he job opportunity is a bona fide, full-time temporary position.” Id. § 655.22(h). “Full-time” is defined as “30 or more hours per week, ” unless a...

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