Gene's Mach., Inc. v. Dep't of Homeland Sec., CIVIL ACTION NO. V-11-4
| Decision Date | 28 March 2012 |
| Docket Number | CIVIL ACTION NO. V-11-4 |
| Parties | GENE'S MACHINE, INC., et al., Plaintiffs, v. DEPARTMENT OF HOMELAND SECURITY, et al., Defendants. |
| Court | U.S. District Court — Southern District of Texas |
Plaintiffs Gene's Machine, Inc. ("Gene's Machine") and Mark Wood, Tracy Wood, Craig Wood, and J.W. ("the Woods") (collectively "Plaintiffs") brought this action against Defendants Janet Napolitano, as Secretary of the Department of Homeland Security (DHS); Alejandro Mayorkas, as Director of United States Citizenship and Immigration Services (USCIS);1 Hilda L. Solis, as Secretary of the United States Department of Labor (DOL); and David L. Roark, as Director of the USCIS—Texas Service Center (USCIS—TSC), (collectively "Defendants") under the Declaratory Judgment Act, 28 U.S.C. § 2201; the Mandamus Act, 28 U.S.C. § 1361, and the Administrative Procedure Act, 5 U.S.C. § 706 et. seq., alleging that Defendants wrongfully denied the Form I-140 Immigrant Petition for Alien Worker ("I-140 petition") that Gene's Machine filed on behalf of Mark Wood, an alien who Gene's Machine seeks to employ.
Now pending before the Court is Defendants' Motion Dismiss (Dkt. No. 7), to which Plaintiffs have responded (Dkt. No. 10), Defendants have replied (Dkt. No. 14), and Plaintiffs have filed a surreply (Dkt. No. 17). Both sides also filed supplemental authority with the Court(Dkt. Nos. 20, 21). Having considered the motion, responses, replies, record, and applicable law, the Court is of the opinion that Defendants' motion should be GRANTED.
An alien cannot work in the United States without the appropriate authority from USCIS. One way for an alien to receive permission to work is for an employer to submit an I-140 petition with USCIS. Before an employer files a petition with USCIS for the issuance of a visa, the employer first must submit an Application for Permanent Employment Certification with DOL, also known as a Form ETA-750, which identifies the job opportunity and the employer's minimum job requirements. See 20 C.F.R. § 656.21 (2004).
The Secretary of Labor ("the Secretary") must then issue a labor certification in conformity with 8 U.S.C. § 1182(a)(5)(A)(i), which provides as follows:
Any alien who seeks to enter the United States for the purpose of performing skilled or unskilled labor is inadmissible, unless the Secretary of Labor has determined and certified to the Secretary of State and the Attorney General that[:] (I) there are not sufficient workers who are able, willing, qualified (or equally qualified in the case of an alien described in clause (ii)) and available at the time of application for a visa and admission to the United States and at the place where the alien is to perform such skilled or unskilled labor, and (II) the employment of such alien will not adversely affect the wages and working conditions of workers in the United States similarly employed.
8 U.S.C. § 1182(a)(5)(A)(i)(I).
One way DOL determines whether to grant a labor certification is for it to test the labor market by advertising the job through the local Employment Service Office. 20 C.F.R. § 656.21(b). If that recruitment effort is unsuccessful, the labor certification is likely to be granted. Id. A faster process for labor certification, called "reduction in recruitment," involves the employer filing documentary evidence that it has made good faith efforts to recruit workers in the U.S. within the preceding six months through sources normal to the occupation, and thatfurther recruitment will be unsuccessful. 20 C.F.R. § 656.21(i). The labor certification may then be approved without further recruitment efforts through the local Employment Service Office.
If the Secretary grants the labor certification, she returns the original certified application to the employer. 20 C.F.R. § 656.24(d). Once an employer has received an approved original labor certification, the employer may file an I-140 petition with the Attorney General. 8 C.F.R. § 204.5. The employer must submit the labor certification with the I-140 petition, and the petition must describe the special training or talent of the specific alien for whom the application is made and the paucity of available similar workers in the United States. Id. § 204.5(a)(2); see also 8 U.S.C. §§ 1153(b)(2)-(3) & 1154(a)(1)(F). Upon approval of an I-140 petition, the named alien receives a visa that allows him to work for the named employer. See 8 C.F.R. § 204.5(n). An alien with an I-140 visa can then petition for adjustment of his status to that of permanent resident through Form I-485, if he so chooses. See 8 U.S.C. § 1255.
Previously, with one exception not relevant here, the relevant regulation provided that approved labor certifications were "valid indefinitely." 20 C.F.R. § 656.30(a). However, following notice-and-comment rulemaking procedures, 20 C.F.R. § 656.30 was amended on May 17, 2007 (with an effective date of July 16, 2007) to provide:
For certifications resulting from applications filed under this part and 20 CFR part 656 in effect prior to March 28, 2005, the following applies: (1) An approved permanent labor certification granted on or after July 16, 2007 expires if not filed in support of a Form I-140 petition with the Department of Homeland Security within 180 calendar days of the date the Department of Labor granted the certification. (2) An approved permanent labor certification granted before July 16, 2007 expires if not filed in support of a Form I-140 petition with the Department of Homeland Security within 180 calendar days of July 16, 2007.
20 C.F.R. § 656.30(b)(1)-(2). See also 71 Fed. Reg. 7656—60 (February 13, 2006).
According to DOL, one reason the regulation was amended was to curb the emerging "black market" in labor certifications, wherein "labor certifications [that] never expire . . . can betraded indefinitely and sold to the highest bidder." 71 Fed. Reg. 7659. Another reason for creating a fixed period for the validity of labor certifications was to "more closely adhere[ ]" to the statutory requirement that DOL gauge the availability of able, willing, and qualified workers "at the time of application for a visa." 72 Fed. Reg. 27924. DOL further stated that "[l]abor market conditions are subject to rapid change, and it is consistent with DOL's mandate under [§ 1182(a)(5)(A)(i)(I)] to require a retest of the market after the passage of [180 calendar days]." Id. Finally, DOL concluded that "[t]he imposition of a validity period is a logical mechanism by which the Department can ensure that the information upon which a determination was based remains legitimate." 72 Fed. Reg. 27925.
According to the facts as set forth in Plaintiffs' Original Complaint (Dkt. No. 1), the Woods were initially admitted to the United States through the Visa Waiver Program on January 20, 1998 for an authorized period of stay through April 19, 1998. On April 15, 1998, attorney Justice B. Adjei ("Adjei") filed a Form I-539 Application to Extend Non-Immigrant Status for the Wood family. On July 16, 1998, INS denied the petition on the grounds that an alien admitted to the United States through the Visa Waiver Program "is not eligible for extension of his or her authorized period of temporary stay in the United States; is not eligible for adjustment of his or her status pursuant to section 245 of the Act, other than as an immediate relative as defined in section 201(b) of the Act or under the provisions of section 245(i) of the Act; and is not eligible for change of nonimmigrant status pursuant to Section 248 of the Act." 8 C.F.R. § 217.3(a).
On April 20, 1998, Gene's Machine, through attorney Adjei, filed a Form ETA-750 Application for Permanent Employment Certification with DOL on behalf of Mark Wood. As noted in Part I, supra, in order to obtain the approved labor certification, the U.S. employer mustgo through a complicated and expensive recruitment process following the regulations at 22 C.F.R 656. Gene's Machine went through this recruitment process immediately after filing the application on April 22, 1998.
On June 24, 1998, Gene's Machine, again through Adjei, filed an I-129 Petition for a Nonimmigrant Worker seeking H-1B nonimmigrant status as a temporary worker for Mark Wood after Adjei incorrectly told Mark Wood that he was eligible for a change of nonimmigrant status from his admission under the visa waiver program to H-1B nonimmigrant temporary worker status. On November 19, 1998, INS denied the H-1B petition on the grounds that a foreign national admitted under the Visa Waiver Program is not eligible for any such immigration benefit. As a result, in May 1999, the Woods returned to the United Kingdom.
The Woods returned to the United States on January 11, 2000—again through the Visa Waiver Program—to attend a wedding. Adjei counseled Mark Wood that he would be eligible to adjust status through an employment-based visa petition based on the labor certification petition Gene's Machine had filed in 1998 if Gene's Machine was still willing to petition for Mark Wood. According to the Complaint, Gene's Machine was fully willing to petition for Mark Wood.
On June 28, 2000, the Alien Labor Certification Unit of the Texas Workforce Commission sent Adjei a letter requesting amendments on the Forms ETA 750 Parts A and B accompanying Gene's Machine's labor certification petition. The Complaint does not state whether the forms were ever amended. On October 25, 2002, the DOL Employment and Training Administration Dallas Backlog Elimination Center ("Backlog Center") informed Gene's Machine that the labor certification petition had been forwarded to its office on February 1, 2001 and granted Gene's Machine 45 days to notify the Backlog Center as to whether it wished to continue with the labor certification process.
On February 22, 2005, the Backlog Center informed Gene's Machine that its labor certification petition...
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