Int'l Labor Mgmt. Corp. v. Perez, 1:14CV231

CourtUnited States District Courts. 4th Circuit. Middle District of North Carolina
Writing for the CourtOSTEEN
Docket Number1:14CV231
PartiesINTERNATIONAL LABOR MANAGEMENT CORPORATION, Plaintiff, v. THOMAS E. PEREZ, in his Official capacity as United States Secretary of Labor, and UNITED STATES DEPARTMENT OF LABOR, Defendants.
Decision Date25 April 2014

THOMAS E. PEREZ, in his Official capacity as United
States Secretary of Labor, and UNITED STATES DEPARTMENT
OF LABOR, Defendants.



Dated: April 25, 2014


OSTEEN, JR., District Judge

Plaintiff International Labor Management Corporation ("ILMC") has moved for a temporary restraining order, preliminary injunction, and a writ of mandamus. (Doc. 14.) The Government has responded in opposition (Doc. 22), and Plaintiff has replied (Doc. 29). On April 7, 2014, this court heard argument from the parties. The motion is ripe for ruling.

Plaintiff assists companies in need of foreign, seasonal labor to navigate the complex regulatory process authorizing these foreign workers. Plaintiff claims the Department of Labor ("DOL") has failed to certify Plaintiff's applications on behalf

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of employers for H-2A and H-2B workers within the statutory or regulatory deadlines, or acted outside its statutorily mandated timeframes to approve these worker applications. This delay, Plaintiff argues, has caused damage both to Plaintiff, as agent for employers, and to Plaintiff's employer-clients. Plaintiff contends it will suffer substantial harm if the problem is not immediately rectified. The Government does not dispute that the DOL has been untimely in these applications; rather, it argues that (1) Plaintiff does not have standing to bring these claims; (2) the statutory deadlines are not subject to enforcement by this court; and (3) that delayed processing of the applications was to ensure that the information in the applications was accurate. For the reasons set forth herein, this court finds as follows: (1) Plaintiff has standing, as authorized agent for its employer-clients, under Lexmark v. Static Control; (2) the seven-day deadline within which the DOL is required to either issue a notice of deficiency or notice of acceptance is a mandatory deadline with which the DOL may be required to comply; (3) the failure by the DOL to issue a notice of deficiency or notice of acceptance causes delay to the certification process and related damage to Plaintiff and its employer-clients; and (4) Plaintiff is entitled to a preliminary injunction compelling the DOL to issue either a notice of deficiency or notice of

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acceptance within the required seven-day period and to issue the certification described in 8 U.S.C. § 1188(a)(1) if the employer-client has complied with the criteria.


A. H-2A and H-2B Programs

ILMC is an agent for a number of farming and/or agriculture employers participating in the H-2A and H-2B programs. Those two programs, H-2A (8 U.S.C. § 1101(a)(15)(H)(ii)(a)) and H-2B (8 U.S.C. § 1101(a)(15)(H)(ii)(b)), are thoroughly described in an opinion of the Fourth Circuit, North Carolina Growers' Ass'n, Inc. v. United Farm Workers, 702 F.3d 755 (4th Cir. 2012), and will not be further described here except as necessary to this order.

Generally, a company in need of foreign workers to fill jobs for which no American workers are available is required to apply to the Department of Labor for a certificate issued pursuant to 8 U.S.C. § 1188(c)(1). The application process and related deadlines, as established by statute and regulation, are different for the H-2A and H-2B programs.

With respect to the H-2A program, the DOL cannot require that the employer's application be filed more than 45 days before the date of need. 8 U.S.C. § 1188(c)(1). Once the application is filed, "[t]he employer shall be notified in

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writing within seven days of the date of filing" if it is deficient. 8 U.S.C. § 1188(c)(2)(A) (emphasis added). Those deficiencies may include matters such as the absence of an original signature of the employer (20 C.F.R. § 655.130(d)). If a notice of deficiency is sent, the employer must be given the opportunity to correct any deficiencies and if the application is corrected within five days, the otherwise applicable timeframes remain unchanged.

If the certifying officer determines that the application is complete, then regulations require that the certifying officer notify the employer within seven calendar days of the receipt of the application. See 20 C.F.R. § 655.143(a) ("When the CO determines the Application for Temporary Employment Certification and job order are complete and meet the requirements set forth in this subpart, the CO will notify the employer within 7 calendar days of the CO's receipt of the Application for Temporary Employment Certification."). Of particular significance to this opinion, the notification of receipt contains a directive to the employer requiring positive recruitment of United States workers, undertaken in accordance with the regulations and directives of the certifying officer. See 20 C.F.R. § 655.143(b)(2) (The notice must "[d]irect the employer to engage in positive recruitment of U.S. workers in a

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manner consistent with § 655.154 and to submit a report of its positive recruitment efforts as specified in § 655.156".).1

8 U.S.C. § 1188(c)(3)(A) requires that the Secretary of Labor:

[S]hall make, not later than 30 days before the date such labor or services are first required to be performed, the certification described in subsection (a)(1) if --
(i) the employer has complied with the criteria for certification (including criteria for the recruitment of eligible individuals as prescribed by the Secretary).

The statute contains two schedule requirements for the DOL: a notice of deficiency to be issued within seven days of the application and a certification to be issued not later than thirty days before the date the labor is required. The "certification described in subsection (a)(1)," which shall be

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made no later than 30 days before the date labor is required, is the following:

(a) Conditions for approval of H-2A petitions
(1) A petition to import an alien as an H-2A worker (as defined in subsection (i)(2) of this section) may not be approved by the Attorney General unless the petitioner has applied to the Secretary of Labor for a certification that --
(A) there are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services involved in the petition, and
(B) the employment of the alien in such labor or services will not adversely affect the wages and working conditions of workers in the United States similarly employed.

8 U.S.C. § 1188(a).

As particularly relevant to this case, the failure by the DOL to timely issue either a notice of deficiency or a notice of acceptance can substantially delay the entire certification process period. Applications are not filed more than 45 days prior to the date of need and certification is required at least 30 days prior to the date of need. The entire H-2A certification process is therefore required to occur within a 15-day period. That period allows for seven days of initial review and then seven to eight days of positive recruitment of American workers prior to certification.

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The H-2B program does not contain similar statutory deadlines. However, the H-2B program does contain a regulatory scheme with required action by the DOL to occur within particular timeframes. Specifically, the applicable regulations, 20 C.F.R. §§ 655.312 and 655.333, require the DOL to either issue a notice of deficiency or a notice of acceptance within 7 days of receipt of an H-2B application.

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In 2013, ILMC acted as agent on behalf of a number of employers seeking workers pursuant to the H-2A and H-2B programs. According to ILMC, during 2013, the DOL generally followed the statutory and regulatory guidelines with respect to its employer-clients. (See Pl.'s Reply Br. in Resp. to Defs.' Mem., Ex. 58 (Doc. 29-6)(comparing applicable timeframes for selected clients in 2013 and 2014).)4

B. ILMC's Present Claims

ILMC's problems appear to have arisen following the indictment of ILMC, its owner, and its president on January 31, 2014, for allegedly submitting fraudulent H-2A and H-2B applications. That case, United States v. Eury, et al., 1:14CR39 (M.D.N.C. 2014), has been scheduled for trial in September of 2014 upon the defendants' pleas of not guilty.

According to the Complaint and subsequent pleadings, the applications for certification filed by ILMC this year, following the January Indictment, were ignored by the DOL or otherwise not timely processed. As to the H-2A applications, no notices of deficiency or acceptance were issued within the relevant seven-day time period. As a result, no positive

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recruitment steps could be taken by the employer. Even more significantly, certificates were not issued by the DOL at least 30 days prior to the date of need, and in many instances no certificate was issued by the date of need. According to ILMC, this failure to act and failure to act in a timely fashion by the Department of Labor caused damage, both to ILMC and its employer-clients.


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