Monday, 09 January 2017

Feds confirm 'abuse' of H2B visa program led to historic denials

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“In fact, this appears to be the very basis on which many of [the contractors’] H2B petitions were denied.”  -- Attorney Heather Sokolower for US Attorney General Loretta Lynch.

Guam - The US Citizenship and Immigration Service continues to push back on efforts by local contractors to get H2B visa petitions approved.

In court papers, attorneys for the USCIS confirm that the denial of H2B visas in recent months stems from abuse of the system.

Year in year out, blanket approvals of H2B workers became so standard that approvals were almost expected. But now, it appears that the USCIS is cracking down on what they’re now referring to as abuse.

Attorney for USCIS Heather Sokolower filed a motion to dismiss the Guam Contractor’s Association’s lawsuit once again on the basis that not only does the District Court of Guam lack jurisdiction, but on the very entitlement that local contractors seem to claim because of a historically high approval rating.

GCA and several other local contractors are seeking a preliminary injunction against the USCIS and US Attorney General Loretta Lynch that would reverse the denials of H2B visas in recent months.

The contractors argue that the USCIS is abusing its discretion and is in violation of law when it went from a near 100 percent approval of H2B visa applications to a near 100 percent denial of the same. In their lawsuit, GCA alleges that the federal government changed their policies and procedures for the H2B program without due notice and without providing for input on the matter.

But in their defense, the federal government says a previous approval a contractor may have obtained does not guarantee future approval even if they were based on the same facts or need.

Sokolower says that the policies GCA cites “merely define the peakload and one-time occurrence standards of temporary need; they do not provide the plaintiffs a cause of action or create any entitlement to approval of an H2B petition once these standards have been established.”

To the contrary, Sokolower also points out, approving H2B petitions on the same basis would actually show that these workers "have become a part of the employer’s regular operations,” which eliminates classification of peakload.

“In fact,” she goes on to note, “this appears to be the very basis on which many of [the contractors’] H2B petitions were denied.”

In addition, Sokolower appears to disregard the Guam Department of Labor’s authority in screening the H2B applications, saying the claim that the USCIS is bound by Guam DOL’s assessment is meritless. This, Sokolower argues, is because even if Guam DOL approves the temporary labor certification, the US Department of Homeland Security ultimately has the final say.

You can read the motion to dismiss filed by the US Attorney General’s Office by clicking on the file below.

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