United Ass'n of Journeymen v. Thornburgh, Civ. A. No. 90-2342.

• Decision Date: 07 August 1991
• Docket Number: Civ. A. No. 90-2342.
• Citation: 768 F. Supp. 375
• Parties: UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPEFITTING INDUSTRY, AFL-CIO; and United Brotherhood of Carpenters and Joiners of America, AFL-CIO, Plaintiffs, v. Richard L. THORNBURGH, Attorney General; Immigration and Naturalization Service; James P. Baker, III, Secretary of State; Samuel K. Skinner, Secretary of Transportation; and United States Coast Guard, Defendants.
• Court: U.S. District Court — District of Columbia

768 F. Supp. 375

UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPEFITTING INDUSTRY, AFL-CIO; and United Brotherhood of Carpenters and Joiners of America, AFL-CIO, Plaintiffs, v. Richard L. THORNBURGH, Attorney General; Immigration and Naturalization Service; James P. Baker, III, Secretary of State; Samuel K. Skinner, Secretary of Transportation; and United States Coast Guard, Defendants.

Civ. A. No. 90-2342.

United States District Court, District of Columbia.

August 7, 1991.

Stephen P. Berzon, Robert C. Bell, Jr., Altschuler, Berzon, Nussbaum, Berzon & Rubin, San Francisco, Cal., Brian Powers, O'Donoghue & O'Donoghue, Kathy L. Krieger, United Broth. of Carpenters and

Joiners, Washington, D.C., Victor Van Bourg, Van Bourg, Weinberg, Roger & Rosenfeld, San Francisco, Cal., for plaintiffs.

Sally M. Rider, John D. Bates, Asst. U.S. Attys., Jay B. Stephens, U.S. Atty., Rachel A. McCarthy, I.N.S., Michael D. Russell, Coast Guard, Washington, D.C., for defendants.

MEMORANDUM OPINION

FLANNERY, District Judge.

Plaintiffs, two labor unions representing American construction workers, bring this action challenging certain practices of the defendant executive branch officials and agencies involving employment of nonimmigrant aliens to perform construction work on oil rigs located on the United States' Outer Continental Shelf ("OCS.") At issue is which set of statutes and regulations governs the challenged practices. Plaintiffs contend that the employment of non-immigrant aliens is subject to the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1101 et seq., and its accompanying regulations, which allow work to be performed by nonimmigrant aliens only when no American workers are available and when the wages and working conditions of American workers will not be adversely affected. Defendants argue that the 1978 amendments to the Outer Continental Shelf Lands Act ("OCSLA"), 43 U.S.C. § 1331 et seq., contain provisions pertaining to the employment of nonimmigrant aliens that preclude application of the INA on the OCS. As discussed below, the Court finds that the INA applies to the employment of nonimmigrant construction workers on oil rigs located on the OCS.

I. Statutory and Regulatory Background

A. The Immigration and Nationality Act

The INA defines an "alien" as "any person not a citizen or national of the United States." 8 U.S.C. § 1101(a)(3). Aliens are divided into two groups: "immigrants" and "nonimmigrants." For purposes of this litigation, an immigrant may be defined as an alien entering the United States with the intention of establishing permanent residence. See id. § 1101(a)(15). The INA specifies several categories of aliens who shall be considered nonimmigrants, including "an alien having residence in a foreign country which he has no intention of abandoning ... who is coming temporarily to the United States ... to perform ... temporary service or labor ..." Id. § 1101(a)(15)(H)(ii)(b). The latter category of aliens may be admitted to the United States only "if unemployed persons capable of performing such service or labor cannot be found in this country, ..." Id.

Immigration and Naturalization Service ("INS") regulations provide that nonimmigrants entering the United States pursuant to § 1101(a)(15)(H)(ii)(b) of the INA are granted "H-2B" visas. 8 C.F.R. § 214.2(h)(1), (h)(1)(ii)(B)(2) (1991). An H-2B visa may be issued only upon

(1) A certification from the Secretary of Labor stating that qualified workers in the United States are not available and that the alien's employment will not adversely affect wages and working conditions of similarly employed United States workers; or

(2) A notice detailing the reasons why such certification cannot be made. Such notice shall address the availability of U.S. workers in the occupation and the prevailing wages and working conditions of U.S. workers in the occupation.

Id. § 214.2(h)(6)(iv) (1991).¹

B. The Outer Continental Shelf Lands Act

Congress enacted the OCSLA in 1953 in order "to assert the exclusive jurisdiction and control of the Federal Government of the United States over the seabed and subsoil of the outer Continental Shelf, and to provide for the development of its vast mineral resources." S.Rep. No. 411, 83d Cong., 1st Sess. 2 (1953).² Section 1333(a)(1) of the OCSLA provides:

The Constitution and laws and civil and political jurisdiction of the United States are hereby extended to the subsoil and seabed of the outer Continental Shelf and to all artificial islands, and to all installations and other devices permanently or temporarily attached to the seabed, which may be erected thereon for the purpose of exploring for, developing, or producing resources therefrom, or any such installation or other device (other than a ship or vessel) for the purpose of transporting such resources, to the same extent as if the outer Continental Shelf were an area of exclusive Federal jurisdiction located within a State ...

43 U.S.C. § 1333(a)(1).³

In 1978, Congress amended the OCSLA by adding § 1356(a)(3) and (c). Outer Continental Shelf Lands Act Amendments of 1978, Pub.L. No. 95-372, § 208, 92 Stat. 629, 669-70. This section, applicable to the OCS, provides:

(a) Regulations

Within six months after September 18, 1978, the Secretary of the Department in which the Coast Guard is operating shall issue regulations which require that any vessel, rig, platform, or other vehicle or structure —

* * * * * *

(3) ... be manned or crewed, except as provided in subsection (c) of this section, by citizens of the United States or aliens lawfully admitted to the United States for permanent residence.

* * * * * *

(c) Exceptions from manning requirements

The regulations issued under subsection (a)(3) of this section shall not apply —

(1) to any vessel, rig, platform, or other vehicle or structure if —

(A) specific contractual provisions or national registry manning requirements provide to the contrary;

(B) there are not a sufficient number of citizens of the United States or aliens lawfully admitted to the United States for permanent residence, qualified and available for such work; or

(C) the President makes a specific finding, with respect to the particular vessel, rig, platform, or other vehicle or structure, that application would not be consistent with the national interest; and

(2) to any vessel, rig, platform, or other vehicle or structure, over 50 percent of which is owned by citizens of a foreign nation or with respect to which the citizens of a foreign nation have the right effectively to control, except to the extent and to the degree that the President determines that the government of such foreign nation or any of its political subdivisions has implemented, by statute, regulation, policy, or practice, a national manning requirement for equipment engaged in the exploration, development, or production of oil and gas in its offshore areas.

43 U.S.C. § 1356(a)(3), (c).

II. Factual Background

Defendants are various executive branch officials and agencies (hereinafter "the government") charged with administering the INA and the OCSLA. The unions have identified two oil rig construction projects located on the OCS in which they allege that the government has allowed employment of nonimmigrants in violation of the INA. These oil platforms — the Heritage and Harmony platforms located off the coast of Santa Barbara, California — are being constructed by Heerema Marine Contractors S.A., a Dutch-owned company.

The unions allege that the government has issued nonimmigrant construction workers "B-1" visas,⁴ which, unlike H-2B visas, do not require a certification from the Secretary of Labor regarding the unavailability of American workers or the effect of nonimmigrant labor on American wages and working conditions.⁵ The government admits that nonimmigrants who present themselves for admission at a United States Port of Entry must possess a visa in order to enter the United States prior to proceeding to the OCS. The government also admits that these nonimmigrants are issued B-1 visas, but it contends that such visas are required solely for the purpose of entering the United States and not for the purpose of performing work on the OCS. The government claims that no visa of any type need be issued if the nonimmigrant proceeds directly to the OCS work site without first entering the mainland United States.

III. Discussion

This case is not the first attempt to reconcile the visa requirements of the INA with § 1356 of the OCSLA. In 1982, the Ninth Circuit considered the relationship between these two statutes in Piledrivers' Local Union No. 2375 v. Smith, 695 F.2d 390 (9th Cir.1982). In Piledrivers', the Circuit considered whether the visa requirements of the INA applied to nonimmigrant workers employed as crew members on foreign-owned heavy lift crane ships used in constructing offshore drilling and production platforms. Id. at 391. The Court began its analysis by noting that Congress, in enacting the OCSLA in 1953, intended that the INA apply to employment of aliens on the OCS. Id. at 393 (quoting S.Rep. No. 411, 83d Cong., 1st Sess. 24 (1953)). The Court also found that Congress intended the 1978 amendments to "restate and clarify and not change existing law." Id. (quoting H.R.Conf.Rep. No. 1474, 95th Cong., 2d Sess. 80 (1978), reprinted in 1978 U.S.Code Cong. & Admin.News 1450, 1674, 1679). Having found that Congress in 1978 did not intend to repeal application of the INA to the OCS, and "seeing no irreconcilable conflict between section 1356 and the I.N.A.," the Ninth Circuit ruled that "the I.N.A. applies to the outer continental shelf except as modified by 43 U.S.C. § 1356." Id.

Turning to the facts of the case before it, the Piledrivers' Court found that employment of nonimmigrants on the foreignowned crane ship Challenger I fell within the "foreign ownership exception" of § 1356(c)(2) of the OCSLA. 695 F.2d at 394. The Court's entire...