Immigration Agency Dodges Contempt Over Guestworker Visas

U.S. Citizenship and Immigration Services won’t be held in contempt for violating a court order related to how it adjudicates petitions for H-2B seasonal guestworkers in Guam, a federal judge ruled Dec. 11.

Judge Frances M. Tydingco-Gatewood of the U.S. District Court for the District of Guam rejected a magistrate judge’s recommendation that the agency face contempt penalties after denying H-2B visa petitions on the same grounds as the denials that gave rise to the class action.

The ruling takes back what had been an early, strong rebuke of the agency’s treatment of temporary, employment-based visas.

But it’s still an open question as to whether the USCIS’s denial of the same petitions it previously approved is a violation of the Administrative Procedure Act, the judge said. Although that may cost the agency the lawsuit, it doesn’t rise to the level of contempt, she held.

Despite the setback on the contempt order, the decision is “promising” because “the government is essentially claiming that they have just been ‘making a mistake’ for decades—a mistake on which the Plaintiffs and class have relied,” said Jeff Joseph of Joseph & Hall in Aurora, Colo., who’s representing the plaintiffs.

“If you are going to change the rules of the game, you have to provide notice and comment to the public. They did not do that in this case,” he said in an email.

USCIS officers “evaluate each petition on a case-by-case basis to determine eligibility for the benefit requested, and may request additional information and issue subsequent denials when the petitioner provides insufficient evidence to establish eligibility based on the preponderance of the evidence standard,” an agency spokesman said.

He declined to comment specifically on the case.

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In March 2018, Tydingco-Gatewood certified a class of Guam employers that did or will file a petition for H-2B workers based on either a peakload need or a one-time occurrence necessitating the additional foreign labor. To be included in the class, those petitions must be denied by the USCIS on the grounds that the employer didn’t show its need for the workers was temporary.

By Laura D. Francis for BLOOMBERG LAW
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