Guam Contractors Association et al v. Lynch et al

Filing 85

Order granting in part and denying in part 82 Motion for Clarification; granting in part and denying in part 83 Motion for More Definite Statement. The court ORDERS that: (1) For any earlier submitted petition for which Plaintiffs seek reconsi deration, Plaintiffs shall seek updated temporary labor certification from GDOL and, if granted, shall submit the certification to USCIS to be considered in conjunction with the corresponding petition. New labor certifications may be issued for the s ame period of time originally requested or whatever other period GDOL may deem appropriate. (2) For any new petition Plaintiffs may submit to USCIS for adjudication for any prospective period of need, Plaintiffs must submit along with the petition a new temporary labor certification from GDOL corresponding to the period of need. Signed by Chief Judge Frances M. Tydingco-Gatewood on 2/8/2018. (fad, )

1
2
3
4
5
6
7

THE DISTRICT COURT OF GUAM

8
9

GUAM CONTRACTORS ASSOCIATION, et al.,

10

Plaintiffs-Petitioners,

11

vs.

12

CIVIL CASE NO. 16-00075

ORDER RE: MOTIONS FOR
CLARIFICATION

JEFFERSON B. SESSIONS, III,
Attorney General of the United States, et al.,

13
Defendants-Respondents.
14
15
The parties have filed opposing motions for clarification of the court’s January 24, 2018
16
order, which preliminarily enjoined Defendants from engaging in a specific course of conduct in
17
adjudicating Plaintiffs’ visa petitions. See ECF Nos. 82, 83. Defendants have asked for a new
18
order instructing that Plaintiffs’ prior labor certifications, issued for prior periods of need, cannot
19
be used for any newly-filed petitions and that any new petitions are to be accompanied by
20
corresponding new certifications. Plaintiffs, by contrast, appear to ask for an order specifying
21
that they may: (1) proceed as Defendants request for any petitions not yet submitted; and, for any
22
previously submitted petitions, either (2) submit prior certifications, deemed reopened and
23
approved by court order for a period corresponding to the period originally certified, or (3) seek
24
new certifications from the Guam Department of Labor (GDOL) for periods corresponding to
25
26
27

1

1

those originally certified.

2

Several considerations guide the disposition of these competing requests. Whether

3

Defendants actually seek “clarification” by way of their motion is unclear. They request an order

4

at odds with the language of the court’s prior order, which directs in no uncertain terms “that the

5

Plaintiffs’ prior labor certifications shall remain valid through the end of the next period in which

6

each individual Plaintiff may petition for and receive a temporary visa.” See ECF No. 81 at 33.

7

That was relief both sought in the initial motion for preliminary injunction (see ECF No. 8) and

8

discussed at some length at the hearing.

9

In seeking their proposed revision, Defendants suggest they are motivated by a

10

congressional purpose that has made its way into regulatory language—a purpose which,

11

Defendants appear to contend, requires a new labor determination and corresponding

12

certification each year and thus cannot support the use of prior-year certifications with any

13

petitions Plaintiffs may present here. Whether the regulatory language actually compels that

14

conclusion based on the authority Defendants submit is debatable, because: the cited regulatory

15

provisions are silent, and Defendants have added no additional guidance, as to what might

16

happen to a certification made for a period of need lasting longer than a year; various related

17

regulatory provisions suggest a petition may amend dates of need or employment even while

18

relying on a previously approved certification; and other provisions adding a requirement that

19

amendments be limited to the same fiscal year as the original petition are conspicuously absent

20

from the provisions on which Defendants appear to rely. See, e.g., 8 C.F.R. § 214.2(h)(1)(ii)(D),

21

(6)(v)(B), (viii)(B); cf. id. § 214.2(h)(6)(iv)(D).

22

But Plaintiffs, to their credit and perhaps their detriment, appear to concede that labor

23

certification has not been and should not be the stumbling block here. At the December 11, 2017

24

hearing, for example, Plaintiffs’ counsel suggested that if Defendants have legitimate

25
26
27

2

1

“concern[s] that the test of the labor market is not the same now, we are willing to do that, we are

2

willing to test the labor market—that is really not at issue in this litigation, whether there’s a

3

shortage of workers or whether there’s an adverse effect on wages—we’re willing to go through

4

that.” 12/11/2017 Hrg. Audio at 4:31:00-12 p.m. And in their own motion for clarification, they

5

add that “Plaintiffs (and proposed class) can always initiate the process of re-obtaining a new

6

valid labor certification and submit this to the USCIS upon reopening of the H2B applications.”

7

ECF No. 83 at 2. In the interest of quickly finding common ground and a way forward in this

8

dispute the court, for purposes of these opposing motions, will take Plaintiffs at their word. The

9

court therefore GRANTS IN PART and DENIES IN PART both motions (ECF Nos. 82, 83).

10

The court ORDERS that:

11

(1) For any earlier submitted petition for which Plaintiffs seek reconsideration, Plaintiffs

12

shall seek updated temporary labor certification from GDOL and, if granted, shall submit the

13

certification to USCIS to be considered in conjunction with the corresponding petition. New

14

labor certifications may be issued for the same period of time originally requested or whatever

15

other period GDOL may deem appropriate.

16

(2) For any new petition Plaintiffs may submit to USCIS for adjudication for any

17

prospective period of need, Plaintiffs must submit along with the petition a new temporary labor

18

certification from GDOL corresponding to the period of need.

19

SO ORDERED.

20
21
22

/s/ Frances M. Tydingco-Gatewood
Chief Judge
Dated: Feb 08, 2018

23
24
25
26
27

3