Jeff Joseph 12203 East Second Ave. Aurora, CO 80011 (303) 297-9171 [email protected]Motion for Preliminary Injunction 1 UNITED STATES DISTRICT COURT For the District of Guam Guam Contractors Association; Ace Builders, LLC; BME & Son's, Inc.; Guam Tropical Dive Station, Inc.; Guam XRay dba Guam Radiology Consultants; Johndel International, Inc. dba JMI-Edison; Inland Builders Corporation; Landscape Management Systems, Inc.; Marianas Linen Supply, Inc.; Phil-Gets (Guam) International Trading Corporation dba J&B Modern Tech; Zenaida M. Zantua dba New Fresh Bread Bakeshop; 5M Construction Corporation; on behalf of themselves as individuals and on behalf of others similarly situated, Plaintiffs-Petitioners, v. Loretta E. Lynch, Attorney General of the United States; Jeh Johnson, Secretary for the Department of Homeland Security; Leon Rodriguez, Director for United States Citizenship and Immigration Service; Donald Neufeld, Associate Director, Service Center Operations; Kathy Baran, Director, California Service Center Defendants-Respondents. CASE NO:16-cv-00075 MOTION FOR PRELIMINARY INJUNCTION 5 U.S.C. §701, et seq. 28 U.S.C. §2201, 1331, 1651 F.R.Civ.P. 57 Oral Argument Requested Case 1:16-cv-00075 Document 8 Filed 10/13/16 Page 1 of 28
28
Embed
Motion for Preliminary Injunction...Jeff Joseph 12203 East Second Ave. Aurora, CO 80011 (303) 297-9171 [email protected] Motion for Pre liminary Injunction 1 UNITED STATES
This document is posted to help you gain knowledge. Please leave a comment to let me know what you think about it! Share it to your friends and learn new things together.
Guam Contractors Association; Ace Builders, LLC; BME & Son's, Inc.; Guam Tropical Dive Station, Inc.; Guam XRay dba Guam Radiology Consultants; Johndel International, Inc. dba JMI-Edison; Inland Builders Corporation; Landscape Management Systems, Inc.; Marianas Linen Supply, Inc.; Phil-Gets (Guam) International Trading Corporation dba J&B Modern Tech; Zenaida M. Zantua dba New Fresh Bread Bakeshop; 5M Construction Corporation; on behalf of themselves as individuals and on behalf of others similarly situated, Plaintiffs-Petitioners, v. Loretta E. Lynch, Attorney General of the United States; Jeh Johnson, Secretary for the Department of Homeland Security; Leon Rodriguez, Director for United States Citizenship and Immigration Service; Donald Neufeld, Associate Director, Service Center Operations; Kathy Baran, Director, California Service Center Defendants-Respondents.
CASE NO:16-cv-00075 MOTION FOR PRELIMINARY INJUNCTION 5 U.S.C. §701, et seq. 28 U.S.C. §2201, 1331, 1651 F.R.Civ.P. 57 Oral Argument Requested
Case 1:16-cv-00075 Document 8 Filed 10/13/16 Page 1 of 28
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Motion for Preliminary Injunction 2
TABLE OF CONTENTS
I. JURISDICTION AND VENUE ............................................................................................ 5
II. PARTIES AND PROCEDURAL POSTURE ...................................................................... 6
III. STANDARD OF REVIEW ................................................................................................ 8
a. SUBSTANTIAL LIKELIHOOD OF SUCCESS ON THE MERITS .......................... 10
Plain Language of the Regulations ........................................................................................ 12
b. IRREPARABLE HARM WILL OCCUR UNLESS THE INJUNCTION ISSUES ... 14
c. THE THREATENED INJURY OUTWEIGHS THE HARM THE INJUNCTION WILL CAUSE THE OPPOSING PARTY ............................................................................ 22
d. THE INJUNCTION WILL NOT ADVERSELY AFFECT THE PUBLIC INTEREST 23
PRAYER FOR RELIEF .............................................................................................................. 25
Case 1:16-cv-00075 Document 8 Filed 10/13/16 Page 2 of 28
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Motion for Preliminary Injunction 3
TABLE OF AUTHORITIES
CASES
Ali v. Ashcroft, 213 F.R.D. 390 (W.D. Wash. 2003)................................................................... 18
American Investors Life Ins. Co. v. Green Shield Plan, Inc., 145 Colo. 188, 358 P.2d 473 (1960) ..................................................................................................................... 14
Ass’n des Eleveurs de Canards et d’Oies du Quebec v. Harris, 729 F.3d 937 (9th Cir. 2013) ................................................................................................................................ 8
Blackhawn Indus. Prods. Group Unlimited, LLC v. United States GSA, 348 F.Supp.2d 649 (E.D. Va. 2004) ............................................................................................. 24
Community Nutrition Institute v. Butz, 420 F.Supp. 751 (D.D.C. 1976) .................................... 14
Davis v. Mineta, 302 F.2d 1104 (10th Cir. 2002) ........................................................................ 10
Doe #1 v. Rumsfeld, 297 F.Supp.2d 119 (D.D.C. 2003) ............................................................. 18
Case 1:16-cv-00075 Document 8 Filed 10/13/16 Page 4 of 28
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Motion for Preliminary Injunction 5
MOTION FOR PRELIMINARY INJUNCTION AND MEMORANDUM OF POINTS
AND AUTHORITIES
Plaintiffs and Proposed Class, by and through undersigned counsel, hereby respectfully
moves this Honorable Court for an injunction directing United States Citizenship and
Immigration Services (“USCIS”) to immediately reopen and reverse its decisions and grant the
Plaintiffs and Proposed Class’ H-2B visa petitions. Plaintiffs and Proposed Class also
respectfully request that any Labor Certification issued by the Guam Department of Labor be
extended for the validity period of the reopened USCIS petitions.
This motion is filed in conjunction with Plaintiffs’ and Proposed Class’ Class Action
Complaint Case Number 16-cv-00075. In support of this motion, Plaintiffs state as follows:
I. JURISDICTION AND VENUE
1. This action arises under the Constitution of the United States, the Immigration and
Nationality Act (“INA”), 8 U.S.C. § 1101 et seq., and the Administrative Procedures Act
(“APA”), 5 U.S.C. § 701 et. seq. This Court has jurisdiction under 28 U.S.C. § 1331, § 1651
(relating to necessary Writs), § 2201 (relating to Courts’ ability to fashion appropriate remedies),
and § 2202 (same), as well as 5 U.S.C. §§ 702, 704. Because Plaintiffs also seek declaratory and
injunctive relief, Plaintiffs also rely on F.R. Civ. P. 57.
2. Venue lies in the United States District Court for the District of Guam, the judicial district
in which Plaintiffs reside, and where the majority of the substantial events giving rise to the
current litigation have occurred. 28 U.S.C. § 1391(e).
Case 1:16-cv-00075 Document 8 Filed 10/13/16 Page 5 of 28
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Motion for Preliminary Injunction 6
II. PARTIES AND PROCEDURAL POSTURE
3. Plaintiffs and Proposed Class are numerous companies that are headquartered and do
business on Guam. These companies have relied on and utilized the H2B nonimmigrant
temporary visa program for years to bring in both lesser-skilled and highly-skilled temporary
workers. These employers represent various industries including critical infrastructure
construction, military construction, commercial and residential construction, tourism, hotels,
SCUBA dive shops, radiology medical services, electrical sales and maintenance services, food
services, trucking and many others.
4. Plaintiffs and Proposed Class have consistently relied on foreign workers in the H-2B
program, and typically bring over 2,000 workers a year to Guam on a temporary basis to
supplement their U.S. workforce to meet the peakload or one-time occurrence needs of their
businesses. Some of the companies have participated in the program successfully for decades.
The Plaintiffs are unable to find sufficient U.S. workers on Guam to complete ongoing projects
and meet manpower requirements for their businesses and have come to rely on the H2B
program to operate their businesses and keep the development of Guam moving at an increasingly
rapid pace.
5. Between the years 1995 and 2015, the average approval rate of H2B visa petition
approvals from United States Citizenship and Immigration Services (“USCIS”) for Guam was
approximately 95%.1 For the twelve month period between June 2015 and May 2016, the
approval rate for repeat H2B filers had decreased to 6.8%2 For the year-to-date beginning
January 2016, the approval rate for repeat H2B filers has dropped to .3%.3 For those cases that
1 Guam Department of Labor (“GDOL”). 2 Id. GDOL—3,305 positions applied for. 2,727 denials or awaiting denial. 3 Id. GDOL—670 positions applied for. 89 denials and 409 requests for evidence.
Case 1:16-cv-00075 Document 8 Filed 10/13/16 Page 6 of 28
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Motion for Preliminary Injunction 7
have been appealed to the Administrative Appeals Office (AAO), 100% of the appeals have been
dismissed.
6. This year, as in prior years, in order to continue to operate their businesses, Plaintiffs filed
petitions for H2B workers. To that end, Plaintiffs filed H-2B applications under the “peakload”
or “one-time occurrence” category, as they had done in the past.
7. Each of the Plaintiffs performed the necessary tests of the labor market and applied with
the Guam Department of Labor (“GDOL”) for certification. The GDOL certified that there were
not sufficient U.S. workers to assume the positions. Additionally, the GDOL reviewed the
employer Statement of Temporary Need. The GDOL certified all of the Plaintiffs’ H2B labor
certification applications under either the “peakload” or “one-time occurrence” definition.
8. With the certification, Plaintiffs then filed with USCIS to obtain the approval of the
petition so that the workers could either extend their already existing H2B status or go to the
Consulate and obtain an H2B visa for entry into the U.S.
9. All of the Plaintiffs received Requests for Evidence (“RFE”), requesting additional
evidence that the employer’s need qualifies as peakload or one-time occurrence.
10. Plaintiffs provided evidence responsive to the RFE.
11. Despite the approved labor certifications, despite significant evidence of peakload or one-
time occurrence need, despite decades of years of prior H-2B approvals as peakload or one-time
occurrence, and despite the fact that Guam DOL determined that the need qualifies as peakload or
one-time occurrence, USCIS denied the Plaintiffs’ H-2B petitions.
12. USCIS determinations center on a finding that the Plaintiffs’ need is not peakload or one-
time occurrence because the workers would become part of the Plaintiffs’ regular operations.
13. H-2B petitions are valid for up to one year in the peakload category and for up to three
years in the one-time-occurrence category. Individual workers who participate in the H-2B
Case 1:16-cv-00075 Document 8 Filed 10/13/16 Page 7 of 28
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Motion for Preliminary Injunction 8
program regularly cycle out and return to their home countries and after three years in H-2B
status, those workers cannot change status or be admitted in any other status until they have
remained outside the U.S. for a period of three months.
14. Upon information and belief, USCIS has begun to deny H-2B petitions in numerous, and
possibly thousands, of cases based on peakload and one-time occurrence need, which affects all
petitioners who seek peakload or one-time occurrence employees. It is not clear what the denial
rate is in the continental U.S. The defendants are in the best position to divulge those statistics.
However, the denial rate in Guam is approaching 99% for previous users of the H-2B program.
15. Plaintiffs are in immediate need of H-2B approvals, considering that they have bid on
future contracts and have work on existing contracts on which they have relied on the ability to
obtain H2B workers.
16. Plaintffs and Proposed Class request that this Court give special consideration to this
Motion for Preliminary Injunction due to the fact that Plaintiffs’ and Proposed Class’ H-2B
petitions have historically been approved under the peakload or one-time occurrence category.
Furthermore, Plaintiffs desperately need the H-2B workers in order to complete existing contracts
and avoid significant liquidated damages clauses as well as to continue to bid on future projects.
Without the ability to complete the existing contracts, companies will be faced with laying off
U.S. workers, liquidating their businesses or incurring debt that they may not be able to pay back.
The potential for irreparable harm to Plaintiffs and Proposed Class while this federal complaint is
litigated gives rise to the filing of this petition.
III. STANDARD OF REVIEW 17. A petitioner seeking emergency injunctive relief must demonstrate “(1) a strong likelihood
of success on the merits; (2) the possibility of irreparable injury to the Plaintiff(s) if the
preliminary relief is not granted; (3) a balance of hardships favoring the Plaintiffs; and (4)
Case 1:16-cv-00075 Document 8 Filed 10/13/16 Page 8 of 28
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Motion for Preliminary Injunction 9
advance of the public interest (in certain cases).” Garcia v. Google, Inc., 786 F.3d 733, 740 (9th
Cir. 2015).
18. The first factor, likely success on the merits, is a threshold inquiry. Ass’n des Eleveurs de
Canards et d’Oies du Quebec v. Harris, 729 F.3d 937, 944 (9th Cir. 2013). If the injunction
requires mandatory affirmative action, the Plaintiffs must establish that the law and facts clearly
favor the Plaintiffs’ position. Marlyn v. Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571
F.3d 873, 879 (9th Cir. 2009).
19. Because an injunction ordering a responsible party to take action goes well beyond
maintaining the status quo, such injunctions are disfavored. Stanley v. Univ. of S. Cal., 13 F.3d
1313, 1320 (9th Cir. 1994). Relief should be denied “unless the facts and law clearly favor the
moving party.” Id.
20. However, what constitutes a change in the status quo is an area of ambiguity. The Second
Circuit explains:
Confusion in breach of contract cases as to whether an injunction is mandatory or prohibitory may stem from the meaning of “status quo.” A Plaintiff’s view of the status quo is the situation that would prevail if its version of the contract were performed. A defendant’s view of the status quo is its continued failure to perform as the Plaintiff desires. To a breach of contract defendant, any injunction requiring performance may seem mandatory.
Tom Doherty Assocs. v. Saban Entertainment, Inc., 60 F.3d 27, 34 (2d Cir. 1995).. 21. The Injunction requested herein does not disturb the status quo. On the contrary, it
requests that the status quo be maintained pending the outcome of the current litigation. USCIS
has approved Plaintiffs’ and Proposed Class’ H-2B petitions based on the peakload or one-time
occurrence classification for as many as 30 years in some cases. Plaintiffs are filing the same
applications, for the same job category, using the same procedures, with no change in the law or
with regard to the relevant facts. The Plaintiffs’ and Proposed Class’ cases are clearly approvable
Case 1:16-cv-00075 Document 8 Filed 10/13/16 Page 9 of 28
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Motion for Preliminary Injunction 10
under the peakload or one-time-occurrence category. Plaintiffs seek nothing more than to
demand that USCIS maintain the status quo.
22. Plaintiffs do not request a mandatory injunction. While the injunction may be mandatory
as to the legal issue – that Plaintiffs’ and Proposed Class’ current H-2B petitions meet the legal
definition of peakload or one-time occurrence– the injunction would not require USCIS to grant
the H-2B petition if Plaintiffs did not meet the remaining requirements for H-2B classification.
Thus, although the injunction would require USCIS to determine that Plaintiffs’ and Proposed
Class’ current H-2B petitions meets the peakload or one time occurrence definition, it would not
require USCIS to grant the petition outright if the other H-2B requirements were not met.
a. SUBSTANTIAL LIKELIHOOD OF SUCCESS ON THE MERITS
23. Pursuant to 8 C.F.R. § 214.2(h)(6)(ii)(B)(3), to demonstrate a peakload need:
The petitioner must establish that it regularly employs permanent workers to perform the services or labor at the place of employment and that it needs to supplement its permanent staff at the place of employment on a temporary basis due to a seasonal or short-term demand and that the temporary additions to staff will not become a part of the petitioner's regular operation.
24. Pursuant to 8 C.F.R §214.2(h)(6)(ii)(B)(1), to demonstrate a one-time occurrence:
The petitioner must establish that it has not employed workers to perform the services or labor in the past and that it will not need workers to perform the services or labor in the future, or that it has an employment situation that is otherwise permanent, but a temporary event of short duration has created the need for a temporary worker.
30. Plaintiffs’ year-round operations are also their regular operations. It regularly employs
permanent, full-time employees throughout the year. It supplements these employees seasonally,
Case 1:16-cv-00075 Document 8 Filed 10/13/16 Page 12 of 28
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Motion for Preliminary Injunction 13
or during its peakload period, or based on a one-time occurrence project when there is “a seasonal
or short-term demand.” See 8 C.F.R. § 214.2(h)(6)(ii)(B)(3).
31. USCIS’s new interpretation of 8 C.F.R. § 214.2(h)(6)(ii)(B)(1) and (3), which attempts to
draw a distinction between year-round operations and regular operations, reads the short-term
demand out of the definition of peakload and one-time occurrence, and it directly contradicts the
plain language of the regulations.
32. In the denials, USCIS states, “In the present case your filing history is evidence that while
the temporary workers may not become part of your year-round operations they have, in fact,
become part of regular operations.” This statement effectively eliminates the reference to
“recurrent” in the definition of peakload. It also ignores the fact that the one-time occurrence
definition recognizes that for particular projects, an employer may need temporary workers even
if they are normally part of the full-time work force.
33. Thus, the “peakload” definition in 8 C.F.R. § 214.2(h)(6)(ii)(B)(3) by necessity allows for
an employer to supplement its permanent staff “during a particular time of the year.” There is no
restriction on supplementing the work force every year, as long as the temporary staff is only
employed for a season.
34. By finding that Plaintiffs’ temporary peakload staff have become part of its regular
operations, USCIS is effectively stating that a peakload need cannot be recurrent, but is instead a
one-time occurrence for a limited period of time of less than one year. This conclusion directly
contradicts the plain language of the regulations, especially considering that there is a separate
category for “one-time occurrence.” See 8 C.F.R. § 214.2(h)(6)(ii)(B)(1). USCIS’s decision is
arbitrary, capricious, an abuse of discretion, and not in accordance with the law.
35. Additionally, by saying one time occurrence workers cannot become part of the employers
regular operations, the USCIS is essentially striking that part of the one-time occurrence
Case 1:16-cv-00075 Document 8 Filed 10/13/16 Page 13 of 28
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Motion for Preliminary Injunction 14
definition that allows for employers to supplement its work force for events that are otherwise
permanent but for which the employer has a short term need for additional workers.
36. Furthermore, Plaintiffs need only demonstrate that it has a peakload need by a
preponderance of the evidence:
The standard of proof applied in most administrative immigration proceedings is the ‘preponderance of the evidence’ standard. Thus, even if the director has some doubt as to the truth, if the petitioner submits relevant, probative, and credible evidence that leads the director to believe that the claim is ‘probably true’ or ‘more likely than not,’ the applicant or petitioner has satisfied the standard of proof.
Adjudicator’s Field Manual, § 11.1(c). The United States Supreme Court has defined “more
likely than not” as a greater than 50 percent probability of something occurring. U.S. v. Cardozo-
Fonseca, 480 U.S. 421 (1987).
37. Plaintiffs have demonstrated by a history of a 95% approval rate, that the preponderance
of the evidence standard has been and can be met. They will continue to demonstrate with future
H-2B applications – by a preponderance of the evidence that there is a better-than-50% likelihood
that their petitions qualify as peakload or one time occurrence under the H-2B rules.
38. The decisions in Plaintiffs and Proposed Class’ cases are arbitrary, capricious, and abuse
of discretion, and not in accordance with the law. They also ignore substantial evidence in the
record submitted by Plaintiffs.
b. IRREPARABLE HARM WILL OCCUR UNLESS THE INJUNCTION
ISSUES
39. If a statute authorizes injunctive relief, then many district courts have found that the
movant need not establish irreparable harm. United States v. Odessa Union Warehouse Co-op,
Cal. 2003); Doe #1 v. Rumsfeld, 297 F.Supp.2d 119, 134-35 (D.D.C. 2003).
53. Plaintiff JMI-Edison has relied on the H2B program for more than 20 years. Their
company performs the majority of work on servicing and maintaining medical equipment on
Guam including X-Ray, Ultrasound and MRI machines. If the company is unable to bring over
the necessary H2B workers, the company will face irreparable harm by being forced to bring over
both equipment and people from the U.S. The costs to the customer of this will make such
services cost prohibitive and could result in a lack of maintenance on medical equipment in
Guam. Additionally, JMI-Edison maintains more than 2000 air conditioning units in 35 public
schools in Guam. If they cannot hire mechanics on H2B visas to service the air conditioning
units, JMI-Edison will give up this contract and there may not be any contractor available to
maintain or service them. JMI-Edison anticipates having to lay off 5-7 U.S. workers because the
company will be unable to bid on future contracts without the H2B workers.
54. Plaintiff Inland Builders has utilized the H2B program since the 1970s. The company
built the 5 star Dusit Thani resort on Guam and has a contract for the renovation of the Hotel
Nikko Guam for $150,000,000. It is anticipated that the company will need 150-200 H2b
Case 1:16-cv-00075 Document 8 Filed 10/13/16 Page 19 of 28
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Motion for Preliminary Injunction 20
workers to complete that project. The company is already seeing irreparable harm. The company
has stopped all bidding on contracts given the dire labor shortage.
55. Plaintiff Landscape Management Systems, Inc. is a landscaping company incorporated on
Guam in 1994. The company is a full-service landscaping company whose clients are large
commercial enterprises and residential properties around Guam. The company has relied on H2B
workers since 2006_ and has had a 100% success rate until 2016. This year, all H2B workers
were denied. If the company is unable to find the necessary landscape laborers it will face
irreparable harm in being forced to give up smaller contracts and will not be able to service the
clients that it has managed to service for the past 20 years.
56. Plaintiff Marianas Linen Supply needs a steady supply of H2B workers to perform
maintenance on laundry machines. The company has major contracts with the large resorts on the
island including the Hyatt and the Hilton. Without H2B technicians to maintain the laundry
facilities, the company faces irreparable harm in the potential loss of all but the smallest of
contracts.
57. Plaintiff J&B Modern Tech. has relied on 9 H2B workers for mechanical, electrical and
civil construction works. They have an apprenticeship program and have been training workers
to be AC technicians, but it takes a long time to complete the apprenticeship program and it is
hard to get workers to work a full day and then go to school in the evening for the apprenticeship
education requirement. Despite best efforts, the company may not be able to bid on some future
contracts without H-2B skilled workers to supplement its U.S. workforce. Without these future
projects, the company is looking at the prospect of laying off U.S. workers.
58. Plaintiff New Fresh Bread Bakeshop is the approved baked goods and bread vendor of the
U.S. military on Guam. This contract, alone, represents 50% of the business for the company.
The company serves between 1000 and 2000 Servicemen a day as well as hotels. New Fresh
Case 1:16-cv-00075 Document 8 Filed 10/13/16 Page 20 of 28
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Motion for Preliminary Injunction 21
Bread is the preferred vendor for the military because the company also does the catering for the
airlines at Guam Airport. The catering contract requires a sanitary license. Because the military
audits food vendors twice per year the sanitary license is added insurance that the military vendor
will be in compliance with food sanitation protocols. In order to supply the military with the
bread needed for meals, the company needs 5-6 bakers and Master bakers. The company also
provides baked good in the mornings for the construction workers doing construction on the
military base. If these companies are unable to find workers, the company faces irreparable harm
in the form of lost revenues and contracts. It takes one to two full years to be trained on how to
use the ovens and machinery necessary to produce baked goods in high volume and these skills
are not available on Guam. The company has already had to close one of its bakeries due to a
shortage of staff. The company had a military contract for 2 years but did not enter bidding this
year because the company does not have sufficient workers. The company anticipates reducing
staff by 10-15 workers due to the decreased volume of contracts. Without ability to obtain H2B
workers, the company will limit production to small contracts. The owners of the company are
another H2B success story. One of the owners is a former H2B pastry chef. His wife was the
owner of New Fresh Bread when they met. They married and now run the business together.
59. Plaintiff 5 M Construction has used the H2B program since 1994 and has sponsored
between 120 and 200 workers a year. 5M does mainly commercial and warehouse contracts. The
company faces significant irreparable harm. The current warehouse contract has a $5,000.00 a
day liquidated damages clause if the contract is not completed by February 2017. Although 5M
does not have current military contracts, it has turned down $2,500,000 in military contracts as
well as $15,000,000 in non-military contracts because of lack of a labor force. The existing U.S.
workers are working 7 hours a day to complete existing projects, but will be laid off once those
contracts are done unless the company can get additional H2B workers.
Case 1:16-cv-00075 Document 8 Filed 10/13/16 Page 21 of 28
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Motion for Preliminary Injunction 22
60. A determination that the Plaintiffs’ and Proposed Class H-2B petitions should be granted
cannot be delayed until a hearing on the merits before this Court, because at that point, the
damage to the companies will already have been done.
61. Thus, Plaintiffs and Proposed class will suffer irreparable harm unless this Court issues
the requested injunction.
c. THE THREATENED INJURY OUTWEIGHS THE HARM THE
INJUNCTION WILL CAUSE THE OPPOSING PARTY 62. Here, the threatened injury is that, without its H-2B workers, Plaintiffs and Proposed class
will be forced to cease operations, face liquidated damages, lay off U.S. workers, forgo bidding
on future contracts, face bankruptcy and default on existing contracts. This would make it
difficult, if not impossible to continue business in 2016 and into 2017. This would impact not
only the Plaintiffs and Proposed class, but also the military and the economy of Guam. Guam and
the federal governments would also lose additional tax revenue from Plaintiffs’ employees, both
H-2B and non-H-2B. An injunction requiring USCIS to grant Plaintiffs’ and Proposed class’
denied H-2B petitions would prevent such grave injury.
63. Defendants would suffer no harm from the proposed injunction; in fact, they will benefit
from it. An H-2B approval would be consistent with the H-2B approvals that Plaintiffs have
received in the past, some for as many as 30 years. An approval would allow Plaintiffs to
continue to contribute to the United States economy, employ U.S. workers, and complete strategic
ongoing military projects on Guam. Granting Plaintiffs’ and Proposed class’ H-2B petitions also
discourages illegal immigration, as it rewards an employer who is playing by the rules in
industries that often rely on undocumented labor. Defendants would benefit from the injunction
rather than be harmed by it.
64. The Government cannot, in good faith, claim harm when the Government has been
approving the same applications, based on the same law and same set of operative facts for the
Case 1:16-cv-00075 Document 8 Filed 10/13/16 Page 22 of 28
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Motion for Preliminary Injunction 23
past 30 years. Any minor inconvenience the injunction would cause Defendants is greatly
outweighed by the harm that Plaintiffs and Proposed class will suffer if their H-2B petitions are
not approved immediately.
d. THE INJUNCTION WILL NOT ADVERSELY AFFECT THE PUBLIC
INTEREST 65. An injunction requiring USCIS to grant Plaintiffs’ and Proposed Class’ petitions will not
adversely affect the public interest; in fact, it will further that interest.
66. Granting Plaintiffs’ and Proposed Class’ H-2B petitions will allow the companies to
continue operating, thereby providing needed services to Guam, the U.S. military and the tourism
industry. The Plaintiffs will continue to employ United States workers, and will contribute to the
United States economy by engaging with subcontractors and vendors. The businesses as well as
their employees – both H-2B and non-H-2B – will continue to pay both state and federal taxes.
An approved H-2B petition will also discourage illegal immigration by allowing an employer to
hire authorized workers in an industry that often relies on undocumented workers due to a lack of
U.S. workers who are willing to perform the job.
67. The grant of the injunction also serves U.S. strategic military needs. The island of Guam
is critically important to the security of the United States as it is the closest U.S. territory to the
Asian/Pacific region. The Island is approximately 30 miles long and 10 miles wide making it the
largest of the Mariana Islands. Its protected harbors and its size make it the only island suitable
for a large airport and for strategic maritime operations.
68. The military bases on Guam have served the United States strategically in several periods
of conflict including the Cold War, the Korean War, the Vietnam War, the Gulf War and the Iraq
War.
Case 1:16-cv-00075 Document 8 Filed 10/13/16 Page 23 of 28
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Motion for Preliminary Injunction 24
69. Guam’s strategic importance is further highlighted by the scale down of the Marine base
in Okinawa and the relocation of those marines to Guam. According to the EPA, it is anticipated
that the relocation of the Marines to Guam will increase the population of Guam by 45%.
70. The construction of the military base is estimated to run in excess of $7.5 billion for the
military installation alone. However, the military cannot be constructed without significant
infrastructure improvements as well including road construction, hospitals, water processing
facilities, schools, and other critical projects.
71. Because of the military construction and resultant build-up on the Island, the pressure on
the labor market in Guam has been unsustainable. Simply put, Guam cannot complete the
projects necessary unless the contracting companies have access to a continuous flow of non-U.S.
workers with certain skill sets from outside of Guam.
72. The build-up has been valuable to improving the economy of Guam, allowing small
businesses to grow, and infusing taxes into the economy.
73. Additionally, employers participating in the H-2B program pay a registration fee of
$1,091 per worker. Those funds are allocated by the Department of Labor has for a fund used to
train Guam workers to gain the skills necessary to do those jobs which are currently in shortage
on the island. By approving the H2B petitions, the Government is funding a program that trains
U.S. workers to do the jobs that are in shortage on the Island and makes employers less relianton
foreign labor in the future.
74. The cost to the military of a lack of workers is significant. Both the Department of
Defense and private employers estimate that the costs of bids for future projects will increase
between 60 and 75%.
75. From a strategic and economic standpoint, the unintended consequences of this drastic
about face in USCIS decision-making has proven disastrous to the economy of Guam and can
Case 1:16-cv-00075 Document 8 Filed 10/13/16 Page 24 of 28
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Motion for Preliminary Injunction 25
only get worse. Military and national security interests tip the balance in favor of granting an
injunction. Blackhawn Indus. Prods. Group Unlimited, LLC v. United States GSA, 348 F.Supp.2d
649, 661 (E.D. Va. 2004)(granting injunction to Plaintiff to prevent government from removing it
from a list of approved suppliers of tactical products for military combat because the absence of
an injunction would impact the war effort and national security.)
76. Thus, the public interest will be furthered, not harmed, by an Order requiring USCIS to
grant Plaintiff’s current H-2B application.
CONCLUSION
77. Plaintiffs satisfy the four requirements for emergency injunctive relief, and have
demonstrated the potential for manifest injustice should their H-2B petition be denied.
PRAYER FOR RELIEF
WHEREFORE, Petitioner, Plaintiffs and Proposed Class, prays that this Honorable Court grant
the following relief:
(1) Grant the EMERGENCY temporary restraining order in this case;
(2) Issue an order requiring USCIS to REOPEN and GRANT Plaintiffs H2B
petitions immediately;
(3) Extend the Labor Certifications nunc pro tunc for the entire validity period for
the time necessary to provide meaningful relief for each individual Plaintiff.
(4) Grant reasonable attorneys’ fees and costs as provided under the Equal
Access to Justice Act, 28 U.S.C. § 2412, and the APA; and
(5) Any other relief that this court deems reasonable and proper.
Dated this 12th day of October, 2016. Respectfully Submitted,
Case 1:16-cv-00075 Document 8 Filed 10/13/16 Page 25 of 28
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Motion for Preliminary Injunction 26
____s/ Jeff. D. Joseph_________ Jeff D. Joseph (Colo. Reg. No. 28695) Pro hac vice Admission pending Joseph Law Firm, P.C. 12203 E. Second Avenue Aurora, CO 80011 Phone: 303-297-9171 Fax: 303-733-4188 [email protected]
Attorney for Plaintiffs Jennifer Davis Davis & Davis, P.C. P.O. Box 326686 Hagatna, Guam 96932 Phone: (671) 649-1997 Fax: (671) 649-1995 [email protected]
Attorney for Plaintiffs
Case 1:16-cv-00075 Document 8 Filed 10/13/16 Page 26 of 28
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Motion for Preliminary Injunction 27
CERTIFICATE OF SERVICE
I, Jeff Joseph, hereby certify that on October 12th, 2016, I electronically filed the foregoing with
the Clerk of Court using the CM/ECF system which will send notification of such filing to the
pursuant to Fed.R.Civ.P. 4 via first class mail on _________, 2016 to:
United States Attorney Civil Division District of Guam Sirena Plaza 108 Hernan Cortez, Suite 500 Hagatna, GU 96910
Loretta E. Lynch Attorney General of the United States U.S. Department of Justice 950 Pennsylvania Ave., NW Washington, D.C. 20530-0001
And to: Jeh Johson, Leon Rodriguez, Don Neufeld and Kathy Baran, DHS/USCIS, c/o:
Office of the General Counsel United States Department of Homeland Security Washington D.C. 20528
Chief of Commercial and Administrative Law Division Office of the Principal Legal Advisor Citizenship and Immigration Services United States Department of Homeland Security
Case 1:16-cv-00075 Document 8 Filed 10/13/16 Page 27 of 28
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Motion for Preliminary Injunction 28
425 I Street NW, Room 6100 Washington D.C. 20536
Respectfully submitted,
/s/Jeff Joseph Jeff Joseph Colo. Reg. No. 28695 Joseph Law Firm 12203 E. Second Ave. Aurora, CO 80011 Phone: (303) 297-9171 Fax: (303) 733-4188 [email protected] Attorney for Plaintiffs
Case 1:16-cv-00075 Document 8 Filed 10/13/16 Page 28 of 28