E & T Elec. LLC v. OFLC Certifying Officer

• Court: U.S. District Court — Northern District of Illinois
• Writing for the Court: MARVIN E. ASPEN, UNITED STATES DISTRICT JUDGE.
• Docket Number: 24 CV 1192
• Decision Date: 05 June 2024
• Parties: E & T ELECTRIC LLC, Plaintiff, v. OFLC CERTIFYING OFFICER, Defendant.
• topic: Contracts,Administrative Law,Immigration Law

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E & T ELECTRIC LLC, Plaintiff, v. OFLC CERTIFYING OFFICER, Defendant.

No. 24 CV 1192

United States District Court, N.D. Illinois, Eastern Division

June 5, 2024

MEMORANDUM OPINION AND ORDER

MARVIN E. ASPEN, UNITED STATES DISTRICT JUDGE.

Presently before us are Plaintiff's objections to Magistrate Judge Jantz's Report and Recommendation dated March 14, 2024. (Pl.'s Obj. to Report and Recommendation (“Objs.”) (Dkt. No. 13).) Magistrate Judge Jantz recommends that Plaintiff's motion for a preliminary injunction be denied. (Report and Recommendation (“R & R”) (Dkt. No. 11).) For the following reasons, we overrule Plaintiff's objections, adopt the R & R, and deny Plaintiff's motion for a preliminary injunction.

BACKGROUND

Plaintiff E & T Electric LLC, is an industrial and commercial electrical-services company headquartered in Colorado. (Compl. (Dkt. No. 1) ¶ 2.) In early December 2023, it entered into a contract to provide electrical services to an entity called America's Heartland Packing, LLC (“Heartland”), which is building a beef-processing plant in Missouri. (Id., Ex. A (Dkt No. 1-3) at 6, 29-43.) Because the contract is “large” and involves a purchase order of over $6 million, Plaintiff determined that it needed to hire additional workers. (Compl. ¶ 17.)

To address this need, Plaintiff submitted an application (the “Application”) on December 26, 2023 to the Defendant United States Department of Labor's (“DOL”) Office of Foreign Labor Certification (“OFLC”) for a temporary employment certification to secure non-agricultural foreign labor through the H-2B visa program. (Id. ¶¶ 4, 16.) The program is administered in part by the DOL and in part by the Department of Homeland Security (“DHS”) and its United States Citizenship and Immigration Services (“USCIS”). Kiewit Offshore Servs. v. U.S Dep't of Lab., No. 4:22-cv-03716, 2023 WL 5599003 at *1 (S.D. Tex. Aug. 29, 2023). “To begin the H-2B process, an employer must first secure a temporary labor certification from the DOL” by submitting an application, which requires the employer to show that “it has tried, but failed, to fill positions with workers from the United States and that this country's workers will not be adversely affected by filling the positions with H-2B workers.” Id. Once the DOL grants an employer's request for temporary labor certification, the employer can proceed to seek approval from USCIS for the foreign workers' visa eligibility and then apply for a visa from the Department of State. Id.

In its Application, Plaintiff stated that in addition to its staff of 36 workers, 23 of whom were permanent, it sought to employ 12 “Helpers-Electricians” to fulfill the Heartland contract. (Compl., Ex. A, at 7.) According to Plaintiff, its temporary need for workers arose from the Heartland contract, which was a “one-time occurrence” -specifically, a “temporary event of short duration”-terms that are used in a relevant federal regulation, 8 C.F.R. § 214.2(h)(6)(ii)(B)(1). (Id.)

On January 3, 2024, the OFLC's Certifying Officer (“CO”) issued Plaintiff a Notice of Deficiency which stated that Plaintiff's Application “fail[ed] to meet the criteria for acceptance” for two reasons: Plaintiff had not “establish[ed] the job opportunity as temporary in nature” under other relevant federal regulations, 20 C.F.R. § 655.6(a) and (b), nor had it “establish[ed a] temporary need for the number of workers requested.” (Id., Ex. A, Notice of Deficiency, at 180, 183, 185.) As to the first deficiency, the CO elaborated:

The employer[-]submitted documents did not establish a temporary need. The employer's explanation and documentation did not substantiate how the contract is unique or different and over and above the employer's normal workload. The employer did not establish what temporary event of short duration created the need for a temporary worker. Securing a contract for “a huge electrical contract order for one of the process area [sic] rendering in a new factory facility” does not create a temporary need. The employer's need for workers may vary depending on the timing and scope of the individual contracts that it secures. The employer must establish that that its need is temporary in nature, regardless of whether the underlying job is permanent or temporary.

(Id. at 184 (sic in original).) Plaintiff was given the opportunity to submit additional information and documentation.

On January 17, 2024, Plaintiff responded to the Notice of Deficiency with documentation and a written statement, in which it said, among other things, that its need for temporary workers was “the result of an extraordinary one[-] time occurrence, that is being [sic] a massive contract provided to them [sic] on a one-time basis which dwarfs all of the contracts it is [sic] previously entered into.” (Id. ¶ 19; Ex. A, Pl.'s Resp. Notice of Deficiency, at 187.) Plaintiff further stated:

E & T Electric maintains a full[-]time staff of permanent employees who almost all are currently employed now and well into 2024 on ongoing projects. Like almost all companies in the electrical contracting field E & T Electric works contract to contract, but normally the permanent staff is sufficient to carry this load. Occasionally, however, this staff must be augmented by temporary workers when a particularly large project appears which is above and beyond the Company's current capacity. Since this project has been calculated to require 25 workers, we now have a temporary need for [an] additional 12 H-2B workers, lasting 9 months, from March 11, 2024 to December 10, 2024. This is only the second time in the Company's 20[-]year history that it have [sic] had to petition for H-2B workers, and both times it was a result of a temporary event of short duration. ...

The employer currently employs 32 number [sic] of permanent workers to perform the services or labor and anticipates recruiting 10 more in the near future. Nevertheless, a temporary event of short duration, namely[,] six contracts which it has concurrently entered into with [Heartland,] has overwhelmed the ability of the [sic] E & T to provide the necessary services with [its] permanent staff, and so, has created a need for 12 temporary workers. These workers will be temporary because they will only work on this one[-]time contract and not become a part of the employer's permanent staff, since they are need[ed] only for the length of the [Heartland projects,] specifically the portion pertaining to the rendering of electrical motors and controls which is scheduled to be completed at the end of this year. Their services will not be needed after that because no more similar projects can be expected, in that the 6 contracts were all obtain[ed] in connection with an extraordinary one[-]time event, [Heartland's] construction of a new plant. ...

[The Heartland] projects will generate over $17 million in revenues, and require 67,734 man-hours. This is over 8 times the employer's largest project in terms of revenues since 2021 and 4 times as many man-hours. Nor is this a phenomena [sic] which can be expected to repeat itself, because, again all of this work is being done for a new plant [Heartland] is building. Building this plant is an extraordinary onetime occurrence which they have no reason to expect will reoccur in the foreseeable future.

(Id. at 188-190.)

On February 7, 2024, the CO issued a Final Determination denying Plaintiff's Application on the ground that Plaintiff had failed to establish that its need for labor was temporary as a “onetime occurrence” within the meaning of 20 C.F.R. § 655.6(a) and (b). (Id., Ex. A, Final Determination, at 418-27.) The Final Determination included a detailed explanation of the bases for the denial, stating in part:

. . . The employer explains that [the Heartland] project is outside of its normal business operations due to the construction of this plant generat[ing] over eight times the revenue of its largest project since 2021, at $17 million and due to the aforementioned project requiring four times the manhours of its largest project since 2021, at 67,734 man-hours. ...

However, the employer has also explained that its business normally works contract to contract. Despite the size of the contracted project with [Heartland], this project appears to be within the scope of the services the employer provides. Based upon the employer's statement on page 2 of its [Notice of Deficiency] response document, its business is in the electrical contracting field, and thus the employer's business practice appears to be contingent on securing and fulfilling contracts. Therefore, the employer appears to have a permanent, ongoing need for workers, even though its contracts and projects may be of a limited duration.

Securing a contract for electrical construction services does not create a temporary need. In particular, it does not create a one-time need. Although the employer is attesting that the construction of a new power plant is an extraordinary one-time occurrence due to it being a large project, which it has no reason to expect will reoccur in the foreseeable future, the employer is reminded that its need for workers may vary depending on the timing and scope of the individual contracts that it secures. As a result, there is no guarantee that the employer will not have opportunities for large electrical construction projects in the future. ...

. . . Additionally, the employer's statement that “[o]ccasionally, however, this staff must be augmented by temporary workers when a particularly large project appears which is above and beyond the Company's current capacity,” does not indicate that the employer's need to augment its staff is a one-time or unique occurrence.

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