IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
INTERNATIONAL LABOR
MANAGEMENT CORPORATION,
234 Cameron Avenue
Vass, NC 28394
Plaintiff,
v.
THOMAS E. PEREZ, IN HIS
OFFICIAL CAPACITY AS UNITED
STATES SECRETARY OF LABOR
and UNITED STATES
DEPARTMENT OF LABOR,
200 Constitution Ave., N.W.
Washington, DC 20210
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

CASE NO.:

1:14-cv-231

COMPLAINT
Plaintiff INTERNATIONAL LABOR MANAGEMENT CORPORATION
(“ILMC”) hereby brings this Complaint against Defendants, THOMAS E. PEREZ in his
official capacity of Secretary of the United States Department of Labor (“the Secretary”),
and the UNITED STATES DEPARTMENT OF LABOR (“DOL”) alleging as follows:
INTRODUCTION
1.

ILMC brings this action for declaratory and preliminary and permanent

injunctive relief as well as for the issuance of a writ of mandamus because of the failure
of DOL’s Employment and Training Administration (“ETA”), Office of Foreign Labor
1716076.1

Case 1:14-cv-00231-WO-JLW Document 1 Filed 03/19/14 Page 1 of 39

 Certification (“OFLC”) through its national and subsidiary certifying officers under the
direction of the Secretary to fulfill mandatory statutory deadline requirements as well as
requirements of DOL regulations in connection with duly filed and completed
applications filed by ILMC, as the duly authorized agent, pursuant to current DOL
regulations and long-standing practices and procedures, for numerous employers that
need a legal, temporary foreign workforce (pursuant to the H-2A or H-2B foreign
temporary worker program) because they have not found able, willing, qualified and
available U.S. workers to perform their seasonal or other temporary jobs. A listing of
affected employers along with information concerning the number of jobs they must
timely fill to operate their business is attached as Exhibit 1 and will be explained below.
In all cases, ILMC and its employer clients have previously filed with DOL/ETA/OFLC
their respective bona fide agency agreements between ILMC and each respective
employer on whose behalf ILMC is acting as its “agent” in connection with the
employer’s dealings with OFLC. Exhibits 2 and 3. The role of ILMC and other agents
as a legal entity or person who is authorized to act on behalf of an employer for
temporary agricultural labor certification purposes has been recognized by DOL for more
than 30 years. This role is specifically recognized and authorized under the H-2A rules at
20 CFR § 655.103(b) (definition “agent”) and under the H-2B rules at 20 CFR § 655.4
(definition “agent”) (2012). (As set forth below, the H-2B rules contained in the 2013
edition of the Code of Federal Regulations were enjoined from implementation and are
not in effect.)

In all cases, ILMC has assisted its client employers to apply for
-2-

1716076.1

Case 1:14-cv-00231-WO-JLW Document 1 Filed 03/19/14 Page 2 of 39

 certifications to be issued by DOL in accordance with requirements of 8 U.S.C.
§§ 1101(a)(15)(H)(ii)(a) and (b) that respectively provide for the issuance of visas to
allow temporary foreign workers to come to the United States to perform seasonal or
other temporary agricultural work in the so-called H-2A Program and non-agricultural
work in the case of the so-called H-2B Program. Despite the urgent need for timely
processing of all client applications by DOL’s OFLC and despite repeated efforts by
ILMC at the administrative agency level (see sample correspondence between ILMC and
DOL attached as Exhibits 4-28), ILMC and its clients have been subjected to what
appears to be a concerted, continuing, and growing pattern of 1) unlawful delays in
processing H-2A and H-2B applications for authorizations for employers to seek visas
authorizing entry of workers from the Department of Homeland Security, Citizenship and
Immigration Services (“USCIS”), after certification by DOL, 2) unlawful delays in
processing employers’ H-2A and H-2B applications for labor certifications, which are a
prerequisite for employers to seek visas authorizing entry of workers by the Department
of Homeland Security, Citizenship and Immigration Services (“USCIS”), 2) unlawful
delays in the issuance of labor certifications so that applications for such visas cannot be
made, and 3) imposition by DOL of extra requirements that are duplicative of
information and assurances that have already been submitted and that are not authorized
by law or regulation. Examples of improper actions by DOL and failures by DOL to act,
despite statutory requirements for prompt action by DOL in these time-sensitive matters
affecting the livelihoods of affected employers, their U.S. employees, ILMC and its
-31716076.1

Case 1:14-cv-00231-WO-JLW Document 1 Filed 03/19/14 Page 3 of 39

 employees and indeed everyone depending on the timely presence of workers to perform
jobs, include the following:
(a)

Multiple failures to comply with statutory deadlines as well as

regulatory deadlines provided for in the H-2A Program as set forth at 8 U.S.C.
§ 1188(c) as well as DOL’s own regulatory deadlines in 20 CFR § 655 Subpart A
and Subpart B. These statutory deadlines include a requirement that DOL provide
notice “in writing within seven days of the date of filing” if an employer’s
application does not meet [DOL’s] standards ….” 8 U.S.C. § 1188(c)(2)(A). By
statute, the written notice that must be provided by seven days “shall include the
reasons” the application does not meet such standards. 8 U.S.C. § 1188(c)(2)(B).
(b)

Multiple failures by DOL to comply with statutory as well as

regulatory deadlines to issue certification in the H-2A Program “not later than 30
days before the date [foreign workers’] labor or services are first required to be
performed ….” 8 U.S.C. § 1188(c)(3)(A).
(c)

Demands that employer clients of ILMC immediately complete and

return by facsimile (to a DOL telephone number that sometimes does not connect)
or by email (which in many instances small farmers have no scanner equipment
that enables them to accomplish) DOL’s newly designed questionnaire
reconfirmation forms to verify the designation of ILMC as their agent and the
content of application documents that have already been submitted under oath or
affirmation by both the employer and ILMC as the agent. Such demands are being
-41716076.1

Case 1:14-cv-00231-WO-JLW Document 1 Filed 03/19/14 Page 4 of 39

 made, in many instances without notice to ILMC, despite the full compliance by
ILMC and its clients with all requirements for designations of ILMC as their agent
under 20 U.S.C. § 655 Subpart A (H-2B) and Subpart B (H-2A). (See Exhibits 29
(Item I), 30, 31 (Item I), 32.) Moreover, the DOL has not obtained approval for
the use of such forms by submitting the form and the proposed use to statutorily
required processes before making such demands. DOL has thus failed to comply
with the Paperwork Reduction Act, 44 U.S.C. § 3506(c)(2)(A) and requirements
for rulemaking under the Administrative Procedure Act,. 5 U.S.C. § 553 and under
the Immigration Reform and Control Act (“IRCA”) with respect to regulations and
what amount legally to regulations that govern the H-2A Program. An example of
such a questionnaire reconfirmation form that ILMC’s clients have received is
attached as Exhibit 33. The form is captioned as an “Enclosure for Unacceptable
Applications.”
2.

From the perspective of ILMC, if someone were deliberately trying to put it

and its employer clients out of business, that person could hardly have adopted a more
effective approach than DOL has followed and the approach that the Secretary has
allowed this season in connection with applications pending on behalf of ILMC’s H-2A
and H-2B employers clients as will be alleged in more detail below.
3.

ILMC values its excellent reputation as an experienced agent for H-2A and

H-2B employers whose staff both know applicable legal requirements and vigorously
pursue the rights of their ILMC clients. Copies of the Agency Agreements between
-51716076.1

Case 1:14-cv-00231-WO-JLW Document 1 Filed 03/19/14 Page 5 of 39

 ILMC and its H-2A and its H-2B clients are attached as Exhibits 2 and 3 respectively.
The actions and omissions of the DOL as set forth in this Complaint have caused ILMC
to suffer immediate, continuing, growing, serious and irreparable harm to its business
reputation, as well as to its financial standing and to its client employers who rely on the
availability of a timely arriving, legal foreign workforce to supplement the U.S.
workforce for their temporary or other seasonal jobs. According to a recent study
published jointly by the Center for Global Development and the Partnership for a New
American Economy, “International Harvest: A Case Study of How Foreign Workers Help
American

Farmers

Grow

Crops

–

and

the

Economy,”

at

17

http://www.cgdev.org/publication/international-harvest-case-study-how-foreign-workershelp-american-farms-grow-crops (May 2013), every three H-2A workers create one (1)
new job for a U.S. worker. Others estimate that even more U.S. jobs are created because
of the work performed by H-2A temporary foreign workers.

Thus, ILMC’s client

employers as well as their American employees and the American economy generally are
suffering irreparable, immediate, continuing and growing losses to their own reputations
and abilities to serve their respective customers and clients, as well as irreparable
financial hardship. Receiving authorization to hire temporary foreign workers through a
certification issued by DOL the day before workers are actually needed is almost
tantamount to a denial of certification. For others, their beginning date of need has
passed and they still have no certification. ILMC will do all it can, as quickly as it can, to
minimize additional irreparable losses and irretrievable business opportunities. Upon
-61716076.1

Case 1:14-cv-00231-WO-JLW Document 1 Filed 03/19/14 Page 6 of 39

 learning on March 7, 2014, that DOL was demanding that its clients complete and return
a new and unexpected—never previously seen--form such as Exhibit 33 to confirm
ILMC’s status as their agent and the content of their job orders, ILMC immediately
began contacting all clients by telephone to urge them to complete and return that form to
DOL as quickly as possible to avoid certification delay even though there is no authority
for such form to be used, much less required. For those clients that have email addresses,
ILMC also sent out an email the same day it learned from a client of the new form being
used. Notably, ILMC did not learn about this extraordinary process and new form from
DOL. DOL had sent out the form directly to the ILMC client, not only bypassing ILMC
but not even informing ILMC, the duly credentialed agent, of what DOL was asking of
its clients. A copy of this March 7 email to clients that have email addresses is attached
as Exhibit 34. ILMC therefore asks that in accordance with the Administrative Procedure
Act, 5 U.S.C. §§ 551(13) and 706, the Secretary and DOL be required immediately and in
good faith 1) to complete agency actions by the mandatory timelines set out in statute and
regulation, that have been unlawfully withheld or unreasonably delayed, 2) to issue
expeditiously certifications in all cases in which such issuances are appropriate, 3) to
complete other processes required by statute and regulations for expeditious processing
of other applications, and 4) to discontinue immediately the process of requiring
employers to re-certify their designation of ILMC as their lawful agent in dealing with
the DOL. Further, ILMC asks that a writ of mandamus be issued pursuant to 28 U.S.C.
§ 1361 to compel the Secretary, as an officer or employee of the United States or an
-71716076.1

Case 1:14-cv-00231-WO-JLW Document 1 Filed 03/19/14 Page 7 of 39

 agency thereof, to perform all duties owed to ILMC. Such order requested under the
Administrative Procedure Act and pursuant to the writ of mandamus should require the
prompt performance of all duties owed to ILMC and to its employer clients without
imposing restrictions and requirements on ILMC and its client employers that are not
duly authorized by existing law or that are duplicative of information, assurances, and
attestations that are contained in documents already filed with DOL. Under applicable
law, ILMC has a clear right to the relief being sought to require the Secretary to perform
these duties in accordance with specific statutory and regulatory deadlines in accordance
with existing statutory and regulatory processes and requirements and to refrain from
requiring processes, form completions, reaffirmations that are not authorized by existing
law and regulations. The duty of the Secretary to perform these duties is clear, and there
is no other adequate remedy available to ILMC. Thus the writ of mandamus that ILMC
seeks should be issued in accordance with 28 U.S.C. § 1361 and the law of this Circuit as
discussed in First Federal Savings and Loan Ass’n v. Baker, 860 F.2d 135 (4th Cir. 1988).
JURISDICTION AND VENUE
4.

This Court has federal question jurisdiction of this matter pursuant to 28

U.S.C. § 1331 as this action arises under the laws of the United States, including the
Administrative Procedure Act, the law that provides for judicial review of “agency
action” as defined in 5 U.S.C. § 515(13) under the requirements of that law in its Sections
553 and 701 et seq., and the issuance of a writ of mandamus pursuant to 28 U.S.C.

-81716076.1

Case 1:14-cv-00231-WO-JLW Document 1 Filed 03/19/14 Page 8 of 39

 § 1361. Applicable statutes under which the rights of ILMC have been violated are set
forth at 8 U.S.C. §§ 1101(a)(15)(H)(ii)(a) and (b), 1103(a), 1184(c) and 1188.
5.

Venue is proper in the Middle District of North Carolina. Plaintiff ILMC is

a incorporated in the State of North Carolina with its principal place of business located
in Vass, North Carolina, within the Middle District of North Carolina. A substantial part
of the events and omissions giving rise to the claim occur within this District. The
Defendant Secretary of Labor is an officer of an agency of the United States and is sued
in his official capacity, and DOL is an official agency of the United States. 28 U.S.C.
§§ 1391(b), (c)(2), and (e).
6.

ILMC assists more than 200 employers across the United States in

connection with navigating the complex H-2A and H-2B paperwork processes. With
respect to H-2A clients who are legally permitted to use services of agricultural workers
from another country only for a maximum of ten (10) months and who must annually
complete a series of steps on time and in compliance with applicable statutory and
regulatory rules pertaining to execution of documents, submission of reports, and other
requirements, ILMC works with its clients to facilitate the availability of a reliable
workforce through the use of the H-2 Program, H-2A Program, either through
employment of able, willing and qualified U.S. workers who are available at the time and
place needed for the job or through the employment of temporary foreign workers.
ILMC provides technical assistance to employer clients in connection with H-2A
requirements and other laws that apply only to or that have special application with
-91716076.1

Case 1:14-cv-00231-WO-JLW Document 1 Filed 03/19/14 Page 9 of 39

 respect to agricultural employers; it acts as a liaison between its clients and government
agencies, including DOL; it provides representation of the interests of agricultural
employers in connection with regulatory affairs and initiates and supports legislation to
support the needs of agriculture employers.
7.

In connection with the H-2B Program, ILMC assists non-agricultural H-2B

employers, as that term is currently defined by DOL, in the process to obtain a legal and
adequate labor force that includes U.S. workers, to the extent they are able and willing to
perform such jobs, as well as temporary foreign workers to perform work in other than
agricultural jobs.
STATUTORY FRAMEWORK FOR
THE H-2A PROGRAM SHOWS DEADLINES FOR DOL ACTION ARE
MANDATORY DEADLINES DOL MUST MEET AND THAT IT MAY NOT ADD
REQUIREMENTS WITHOUT AT LEAST PROPER RULEMAKING
8.

The statutory authorization for the H-2A Program as a guest worker

program that is separate and specifically for agricultural workers was created as part of
the Immigration Reform and Control Act of 1986 (“IRCA”). Pub. L 99-603, Title III,
§ 301(c), 100 Stat. 3411; renumbered, § 218 and amended, Oct. 24, 1988, Pub. L. 100525, §§ 2(l)(2), (3), 102 Stat. 2612.
9.

As originally enacted, the detailed requirements that apply to both

employers and DOL were codified at 8 U.S.C. § 1186. These requirements are currently
codified at 8 U.S.C. § 1188.
10.

As originally enacted, under the H-2A Program, the Secretary of Labor

could require a farmer applicant to file his application for certification to obtain
- 10 1716076.1

Case 1:14-cv-00231-WO-JLW Document 1 Filed 03/19/14 Page 10 of 39

 temporary foreign workers if adequate, able, willing and qualified U.S. workers were not
available sixty (60) days before the employer’s first date of need for such labor or
services. As amended in 1999, the Secretary now may not require that a prospective H2A employer application be filed “more than 45 days before the first date the employer
requires the labor or services of the H-2A worker. 8 U.S.C. § 1188(c)(1).
11.

Once an application for temporary labor certification, if sufficient U.S.

workers are not available, has been filed, the employer “shall be notified in writing within
seven days of the date of filing if the application does not meet the standards … for
approval.”

8 U.S.C. § 1188(c)(2)(A). The seven-day deadline is mandatory, not

aspirational. The regulations provide no basis upon which the seven (7) day deadline
may be extended. Moreover, “[i]f the application does not meet such standards, the
[written] notice shall provide the reasons therefor and the Secretary shall provide an
opportunity for the prompt resubmission of a modified application.”
12.

Because of difficulties of projecting weather, market and other crop

conditions, agricultural employers found making plans and submitting application
documents, as originally required by IRCA and the Secretary, at least sixty (60) days
before their date of need for workers’ labor or services required them to make irrevocable
decisions too far in advance to make prudent business decisions. Therefore, employers
urged they required a reduction in the time before their date of need that the Secretary
could require them to file H-2A application documents offering promises of employment,
with specified wage rates and other terms and conditions of employment as required by
- 11 1716076.1

Case 1:14-cv-00231-WO-JLW Document 1 Filed 03/19/14 Page 11 of 39

 the Secretary. In 1999, Congress reduced the time in advance of the farmer’s projected
dated of need the Secretary could require such application submission from sixty (60)
days to forty-five (45) days as now provided in 8 U.S.C. §1188(c)(1).
13.

As originally promulgated as part of IRCA, the Secretary of Labor was

allowed to wait until twenty (20) days before an employer’s date of need for labor or
services to issue a certification that the employer had met the applicable criteria for
employment of temporary and foreign workers, to the extent U.S. workers were not
available. Receiving a certification only twenty (20) days before workers were needed on
the farm did not allow sufficient time to complete all other visa application procedures.
Since 1999, processes by which employers may apply to the Department of Homeland
Security’s Citizenship and Immigration Services “U.S.C.I.S.”) for authorization for the
issuance of visas and by which individual prospective workers may apply for the issuance
of a visa to them personally have become more time-consuming and complex, even
requiring individual prospective workers to complete their DS-160 forms via computer or
to make arrangements for someone to make the filing on their behalf. As amended in
1999, under statutory law,
The Secretary of Labor shall make, not later than 30 days before the
date such labor or services are first required to be performed, the
certification described in subsection (a)(1) of this section ….
8 U.S.C. § 1188(c)(3)(A).

- 12 1716076.1

Case 1:14-cv-00231-WO-JLW Document 1 Filed 03/19/14 Page 12 of 39

 14.

Under the Immigration Reform and Control Act provision creating the H-

2A Program and the requirements, as amended, that are part of 8 U.S.C. § 1188, the
Secretary of Labor does not have the unilateral right to issue regulations or impose other
H-2A requirements, that in effect are “regulations” because they create mandatory duties
and obligations, in connection with the H-2A Program. Although not officially codified
in the U.S.C.A, the following statutory requirement, as amended and codified in 8 U.S.C.
§ 1103, continues to govern the H-2A Program:
The Attorney General, in consultation with the Secretary of Labor
and the Secretary of Agriculture, shall approve all regulations to be
issued implementing sections 101(a)(15)(H)(ii)(a) and 218 of the
Immigration and Nationality Act [8 U.S.C. 1101(a)(15)(H)(ii)(a),
1188].
(Emphasis supplied.) Section 301(e) of Pub. L. 99-603, as amended, Pub. L. 100-525,
§ 2(l)(4), Oct. 24, 1988, 102 Stat. 2612, reprinted in 8 U.S.C.A. § 1188, note at p. 166
(2005).
15.

Under 8 U.S.C. § 1103(a), the responsibilities of the Attorney General of

the United States have now been transferred to the Secretary of the Department of
Homeland Security.
16.

When the proposed H-2A provisions of the Immigration and Control Act

were presented to the Congress for consideration, the bill was presented just as it had
been negotiated among interested groups. As presented to Congress, the section that was
- 13 1716076.1

Case 1:14-cv-00231-WO-JLW Document 1 Filed 03/19/14 Page 13 of 39

 to become the 8 U.S.C. § 1188(c) section in which responsibility for meeting deadlines in
issue in this case was placed on the Secretary of Labor was headed with the caption
“SPECIAL RULES FOR CONSIDERATION OF APPLICATIONS.”
original.)

(Emphasis in

The subsection now codified at 8 U.S.C. § 1188(c)(1) that specifies the

maximum length of time before the date of need that the Secretary of Labor may require
the filing of an employer’s application for H-2A certification was captioned
“DEADLINE FOR FILING APPLICATIONS.” (Emphasis in original.) The text now at
8 U.S.C. § 1188(c)(2) that specifies that the Secretary must notify the employer in writing
within seven days of the date of filing the application if the application for certification
does not meet the applicable standards for approval was captioned “NOTICE WITHIN
SEVEN DAYS OF DEFICIENCIES.” (Emphasis in original.) The subsection that now
provides that the Secretary “shall make, not later than 30 days before the date such labor
or services are first required to be performed” carried the caption “ISSUANCE OF
CERTIFICATION.”

(Emphasis in original.)

These statutory instructions to the

Secretary, including the requirements of 8 U.S.C. § 1188(c) as stated therein together
with the changes to deadlines in 1999 demonstrate that H-2A time deadlines on the
Secretary of Labor that are contained in the law are mandatory obligations on the
Secretary and the Department of Labor. Accordingly, these deadlines may not be varied
or excused even by rulemaking.
17.

In this case, there have been no amendments to the statute and not even any

purported regulatory changes (even though the Secretary may not dispense with statutory
- 14 1716076.1

Case 1:14-cv-00231-WO-JLW Document 1 Filed 03/19/14 Page 14 of 39

 requirements by regulation) that would authorize, or purport to authorize, the Secretary to
deviate from the deadlines mandated in 8 U.S.C. §§ 1188(c)(2) and (3).
18.

The DOL regulations currently in effect that govern the labor certification

process for temporary agricultural employment of H-2A workers were promulgated on
February 12, 2010, at 75 Fed. Reg. 6959 et seq. This Court and the U.S. Court of
Appeals for the Fourth Circuit had previously invalidated and held unlawful action by the
DOL to suspend H-2A rules as provided for in 73 Fed. Reg. 77, 110 et seq. (Dec. 18,
2008) (“the 2008 Rules”) and to revert to H-2A rules referenced as the “1987
Regulations” that had been in effect until the 2008 Rules became effective on January 17,
2009. The history of this effort by DOL that resulted in a finding that in doing so DOL
and the Secretary violated the requirements of the Administrative Procedure Act, 5
U.S.C. §§ 553 and 701 et seq. is set forth in North Carolina Growers’ Ass’n, Inc. v. Solis,
644 F.Supp. 2d 664 (M.D. N.C. 2009), aff’d sub nom. North Carolina Growers’ Ass’n,
Inc. v. United Farm Workers, 702 F.3rd 755 (4th Cir. 2012).
19.

Under the current 2010 H-2A Regulation promulgated by the Secretary, a

proposed H-2A employer must first submit an H-2A job order or application on an ETA
Form 790 to the State Workforce Agency (“SWA”) serving the area of intended
employment at least 60 days before its date of need before it may submit an Application
to DOL. (A copy of this form is attached as Exhibit 35.) 20 CFR. 655.121(a)(1). This
requirement was imposed notwithstanding the statutory amendment to 8 U.S.C.

- 15 1716076.1

Case 1:14-cv-00231-WO-JLW Document 1 Filed 03/19/14 Page 15 of 39

 § 1188(c)(1) that provides the Secretary may not require the filing of an application more
than 45 days before the date of need.
20.

Requirements at 20 CFR § 655.130 provide additional filing requirements

and obligations on proposed H-2A agricultural employers and their agents who assist
them in making the required filings and in dealing with the Secretary and DOL. There is
no provision allowing for discretion to add new requirements on an ad hoc basis and
certainly no basis for adding requirements without approval by the Secretary of
Homeland Security and the Secretary of the Department of Agriculture. Applications as
provided for in 20 CFR § 655.130 must be timely filed at the proper National Processing
Center (“NPC”) that has been designated by DOL’s Office of Foreign Labor Certification
(“OFLC”) Administrator.

After following the processes described in 20 C.F.R.

§ 655.121, “a completed Application for Temporary Employment Certification must be
filed [with DOL/NPC] no less than forty-five (45) calendar days before the employer’s
date of need.” See Exhibits 29, 30 and 35 that must be filed.
21.

The Application for Temporary Employment Certification “must bear the

original signature of the employer (and that of the employer’s authorized attorney or
agent if the employer is represented by an attorney or agent).” 20 CFR § 655.130(d).
See Exhibit 29 (Item I) and Exhibit 30 (Items A (for the agent) and B (for the employer).
22.

The 2010 H-2A Regulations provide that
Information received in the course of processing Applications for
Temporary Employment Certification and program integrity
- 16 -

1716076.1

Case 1:14-cv-00231-WO-JLW Document 1 Filed 03/19/14 Page 16 of 39

 measures such as audits may be forwarded from OFLC to Wage and
Hour Division (WHD) for enforcement purposes.
20 CFR § 655.130(e).
23.

The provisions of 20 CFR §§ 655.130(d) and .103(b) (“agent” definition)

expressly permit the filing of an Application for Temporary Employment Certification by
an agent of an employer. Any information that is obtained in the course of processing
such an application and program integrity matters may be forwarded to the Wage and
Hour Division (“WHD”). 20 CFR § 655.130(e). Investigations and audits by OFLC are
not authorized as part of the H-2A Application filing or review process under 20 CFR
§ 655.130(e), and they are not otherwise authorized in the 20 CFR 655 Subpart B
regulations that govern to the H-2A Program.
24.

Documents submitted by employers and their agents, including ILMC,

must be submitted under oath or other affirmation under penalty of perjury. In all
pending H-2A and H-2B cases of ILMC clients before the OFLC, all Applications were
submitted and are filed under oath or other affirmation under penalty of perjury. See
Exhibits 29, 30, 31 and 32. Section 655.130(e) allows any question or concern as to the
underlying accuracy of an Application or the actual practices of employers and agents to
be investigated by WHD, upon forwarding information regarding such concerns by
OFLC to WHD.

OFLC is not authorized to stop or delay the processing of an

Application to conduct such an investigation, and indeed the OFLC is not authorized to
conduct such an investigation at all.
- 17 1716076.1

Case 1:14-cv-00231-WO-JLW Document 1 Filed 03/19/14 Page 17 of 39

 25.

In recognition of the stringent time restraints within which all work to

complete review and certification authorization by the mandatory thirty (30) days before
date of need deadline set forth in the statute, the 2010 Regulations require that any notice
or request being sent by a certifying officer in the course of the review of an H-2A
application be sent to assure next-day delivery. 20 CFR § 655.140(b). The regulations
allow a reviewing certification officer to make one such request, not multiple or serial
requests. If in review the certifying officer determines that an Application for Temporary
Employment Certification or job order is incomplete, contains errors or inaccuracies or
does not meet the requirements set forth in the H-2A regulation requirements at 29 CFR
Subpart 655, then the certifying officer must notify the employer within seven (7)
calendar days of the certifying officer’s receipt of the Application for Temporary
Employment Certification. 20 CFR § 655.141(a). The notice submitted to the employer
and the employer’s agent by the certifying officer must state the reasons why the
application or job order fails to meet the criteria for acceptance and offer the employer
the opportunity to submit a modified application or job order within five (5) business
days from the date of receipt of the notice from the certifying officer “stating the
modification that is needed” in order for the certifying officer “to issue the Notice of
Acceptance” of the application. 20 C.F.R. Section 655.141(b)(1) and (2). If the employer
makes the modifications required by the certifying officer, the original deadline for
issuance of the certification no later than thirty (30) calendar days before the date of need
will be maintained; otherwise, the employer must endure what is described as an
- 18 1716076.1

Case 1:14-cv-00231-WO-JLW Document 1 Filed 03/19/14 Page 18 of 39

 expedited administrative review or a de novo administrative hearing before a DOL
Administrative Law Judge. 20 C.F.R. Section 655.141(b)(3). Upon information and
belief, many employers accept demanded changes that are neither supported by law nor
by regulation in order to avoid the costs of certification delays and other expenses of
going through even an expedited appeal process under the rules of 20 CFR § 655.141.
26.

Under the H-2A Application regulations, if the certifying officer determines

that the employer’s Application for Employment Certification and job order are complete
and meet the requirements set forth in 20 CFR § 655, Subpart B when it is submitted to
OFLC, the certifying officer must notify the employer of such acceptance “within seven
(7) calendar days of the certifying officer’s receipt of the Application for Temporary
Employment Certification.” 20 CFR § 655.143(a). This notice authorizes the conditional
access of the employer’s job order to the interstate recruitment system whereby
prospective U.S. workers can learn of the job opportunity and express their interest in it.
Assuming the job order and Application are acceptable as containing the required
provisions, the certifying officer must grant full or partial certification (deducting from
the requested number to be certified, if U.S. workers are not located, the number of U.S.
workers who have been located during the recruitment process) no fewer than thirty (30)
calendar days before the date of need. 8 U.S.C. § 1188(c)(3). This deadline allows the
employer to make a petition to the Department of Homeland Security through its United
States Citizenship and Immigration Services (“USCIS”) to authorize the issuance of visas

- 19 1716076.1

Case 1:14-cv-00231-WO-JLW Document 1 Filed 03/19/14 Page 19 of 39

 by a U.S. Consular office or embassy to enable H-2A workers to enter the country so that
the workers can be in place to begin work on the date of need.
27.

Title 20 CFR § 655.180 authorizes the DOL’s certifying officer to “conduct

audits of applications for which certifications have been granted.” (Emphasis added.) The
regulation does not authorize any audits or investigations by the CO during the critically
time-sensitive certification Application process or indeed before certification has been
granted.
DOL’S UNLAWFUL ACTIONS WITH RESPECT TO
ILMC AND ITS CLIENTS
28.

Upon information and belief, the Defendants have engaged in deliberate,

knowing, and continuing violations of the foregoing applicable statutory law and DOL
rules, resulting in irreparable harm to ILMC and its clients, as will be set forth in more
detail below. On January 31, 2014, ILMC was charged in an indictment alleging a
number of violations of federal immigration laws. United States v. ILMC, 1:14-CR-39
(M.D. N.C. 2014). The company has entered a plea of not guilty to those charges, and
the trial of the case has been set for September of this year. Id. Docket Nos. 7, 21.
29.

The Secretary’s subordinate officials and employees of DOL have

disregarded application filings that have been made, not even acknowledging receipt of
applications as required.
30.

The Secretary’s subordinate officials and employees of DOL have

repeatedly failed to comply with multiple mandatory statutory deadlines as well as
regulatory deadlines provided for in the H-2A Program as set forth at 8 U.S.C. § 1188 as
- 20 1716076.1

Case 1:14-cv-00231-WO-JLW Document 1 Filed 03/19/14 Page 20 of 39

 well as the regulatory deadlines that were established by DOL to govern the fulfillment of
its obligations with respect to the rights of employers and their agents in connection with
the H-2B Program.

The H-2A statutory deadlines include a requirement that DOL

provide notice “in writing within seven days of the date of filing” if the application does
not meet DOL’s “standards … for approval.” 8 U.S.C. § 1188(c)(2)(A). By statute, the
notice that must be provided within seven (7) days “shall include the reasons” the
application does not meet such standards. 8 U.S.C. § 1188(c)(2)(B).
31.

DOL and the Secretary have bypassed ILMC, the duly authorized agent of

record on behalf of its employer clients, by sending notices and demands for additional
information and requests for verification of the status of ILMC and the content of
employers’ job orders only to the employers, contrary to applicable regulations,
authorizations to DOL, and long-established operating procedures relied on by ILMC and
by employers that have hired ILMC to assist them in dealing with DOL and its processes.
Not only is the lawful role of an “agent” expressly recognized in the H-2A regulations,
the role of agents is reflected in the development and promulgation of the H-2A
regulations. See, e.g., 75 Fed. Reg. 6917, 6919, 6920, 6960, 6967, 6968 (Feb. 12, 2010).
32.

DOL and the Secretary have issued notices to ILMC’s clients purporting to

require ILMC’s employer clients to sign multiple and duplicative documents to reaffirm
their agency relationship with ILMC and the content of their applications in violation of
applicable DOL regulations. One such questionnaire reaffirmation form is attached as

- 21 1716076.1

Case 1:14-cv-00231-WO-JLW Document 1 Filed 03/19/14 Page 21 of 39

 Exhibit 33. It is captioned “ENCLOSURE FOR UNACCEPTABLE APPLICATIONS.”
(Emphasis in original).
33.

The Secretary’s subordinate officials and employees of DOL have issued

notices of application deficiencies that do not exist. They have demanded that an
employer remove a specific job experience requirement supposedly contained in the
employer’s job order when the job order itself contains no experience requirement at all.
They have repeatedly issued notices of purported “application deficiency,” demanding a
change that an Administrative Law Judge (“ALJ”) of the United States Department of
Labor ruled on April 5, 2011 that DOL may not require in Bryant Brothers Farm, ETA
Case No. C-11046-27729, OALJ Case No. 2011-TLC-00332 (April 5, 2011). Because
the Bryant Brothers Farm, an ILMC client, had agreed to pay any subsistence
reimbursement rate “per 20 CFR655.122(h),” incorporating by reference the
reimbursement rate in effect at the applicable time, DOL could not treat employer’s
reference to reimbursement rate in effect on the date it filed its application as a
deficiency.

After the ALJ ordered DOL to “expedite processing of [Bryant’s]

application,” nearly 24 hours later, DOL had not contacted the employer regarding the
application and did not do so until its and ILMC’s counsel submitted a motion to hold
DOL in contempt. Copies of the Bryant decision and the Motion for Contempt in that
case are attached as Exhibits 36 and 37.
34.

In the handful of certifications received for H-2A job orders, which must be

by statutory law issued “not later than 30 days before the date such labor or services are
- 22 1716076.1

Case 1:14-cv-00231-WO-JLW Document 1 Filed 03/19/14 Page 22 of 39

 first required to be performed” according to the employer’s needs, those certifications
have been issued in many cases nearly 30 days past the mandatory deadline for making
such certifications.
35.

In Calendar Year 2014, ILMC, as the agent of its clients, submitted timely

applications for H-2A workers to the DOL. In numerous instances, the DOL failed to
issue Notices of Deficiency within the seven (7)-day deadline provided for in 8 U.S.C.
Section 1188(c)(2)(A). See Exhibit 1. The DOL sent unlawful questionnaires/demands
for reconfirmation to ILMC’s clients (not through their duly authorized agent, ILMC),
requesting them to certify (again) that they actually had a need for the workers and
understood certain statutory obligations that apply to the H-2A program. Because the
questionnaires were (a) not authorized by the statute or the regulations, and (b) sent
directly to the employers rather than through the employers’ authorized agent, ILMC,
many of the employers were confused about what they should do. Moreover, the
questionnaires were to be transmitted back to the DOL’s Chicago Processing Center
(“CNPC”) by facsimile or email. Many of ILMC’s clients do not have email or access to
a scanner, and because many of them are small agricultural businesses, they also do not
have easy access to an office services supplier, such as a FedEx Kinko’s. When some of
these clients attempted to fax their questionnaires back to the CNPC, they received busy
signals and were unable to fax the questionnaires. As a result, processing of their
applications has been and continues to be delayed without justification, meaning (a) that
they have not received their certifications no fewer than thirty (30) days before the date
- 23 1716076.1

Case 1:14-cv-00231-WO-JLW Document 1 Filed 03/19/14 Page 23 of 39

 of need, as required by law, and (b) that they and ILMC are suffering and will continue to
suffer irreparable harm due to resulting labor shortages and the damage to ILMC’s
business reputation and the business reputations of ILMC’s clients. One client, Cotton
Hope, did manage to complete and return its questionnaire the day it was received,
March 7, 2014. Certification was due to have been issued on March 1, 2014; even after
Cotton Hope immediately returned the questionnaire/reconfirmation on March 7, Notice
of Acceptance was not issued until March 14, 2014. As of this filing, Cotton Hope, due to
have received certification on March 1, has not received its certification nearly three (3)
weeks late. Based on experience with the processes that must be completed through the
U.S.C.I.S. (see U.S.C.I.S. Form I-129, Exhibit 38) and the individual worker DS-160
applications that must be filed with the United States Department of State Consular
Office by computer, by or on behalf of each proposed worker who must schedule and
must be personally interviewed in the foreign country before issuance of a visa for that
worker, there is no factual basis to hope that Cotton Hope’s workers can be on the job on
time. Indeed, the processing time between issuance of a visa and the availability of a
worker to be on the job at work is the reason that the farmers urged Congress to change
the law to require DOL certification at least thirty (30) days before the date of need so
that post DOL certification processes can be completed, and the post-certification
processes now in effect are much more complex and time-consuming to complete than
were those in effect in 1999.

- 24 1716076.1

Case 1:14-cv-00231-WO-JLW Document 1 Filed 03/19/14 Page 24 of 39

 36.

In other instances, the DOL sent repeated, and unauthorized, Notices of

Deficiency (“NOD”) to the employers, causing unjustified delay in the certification for
workers. For example, despite the ruling in Bryant Brothers Farm by the Administrative
Law Judge on April 5, 2011, that because the employer in that case had agreed to pay any
subsistence reimbursement rate in effect at the applicable time, DOL could not treat the
employer’s reference to the reimbursement rate in effect on the date it filed its application
as a deficiency, almost two (2) years later, by Notice dated March 7, 2014, in connection
with an H-2A application filed by Berglings Honey Farm, DOL rejected exactly the same
language the Bryant Brothers Farm ALJ had ruled was an adequate incorporation by
reference of any new rate that might become effective during the time the 2014
certification would be effective. DOL demanded that Berglings and ILMC amend the
Berglings’ job order to specify the new subsistence reimbursement rate that, as set forth
below, had not yet even been published in the Federal Register, as provided in 20 CFR. §
655.173, when, to meet other ETA filing deadlines, the Berglings application had been
filed. See Exhibit 39, p. 3, DOL claimed “Deficiency” No. 1 with respect to Item 19 of
the attachments to Berglings’ ETA Form 790. A copy of the Berglings ETA 790 that is
the subject of DOL’s March 7, 2014 claimed Notice of Deficiency is attached as Exhibit
40. For convenience of reference, the pages of the complete Exhibit 40. ETA 790
package are numbered continuously at the bottom of the page as “Page _ of 14.” Turning
first to the claimed deficiency as specified on page 3 of Exhibit 39, and then in the ETA
790 Exhibit 40, the text on page 12 of 14 pages in to the fifth paragraph under “Item 19”
- 25 1716076.1

Case 1:14-cv-00231-WO-JLW Document 1 Filed 03/19/14 Page 25 of 39

 addresses the subsistence reimbursement issue. It says that subsistence will “be paid as
per 20 CFR 655.122(h),” The same language found was acceptable in the Bryant case on
April 5, 2011 over a DOL certifying officer’s objection. See Bryant decision, attached as
Exhibit 36. See also Berglings’ ETA 790, Exhibit 40, Item 14, on Page 9 of 14 pages
where the commitment is made to paying, if applicable, “11.42 per day, or the current
subsistence amount as posted in the Federal Register.” Besides the fact that an ALJ had
already ruled that the requirement was not permissible, this requirement imposed on
Berglings’ Honey Farm is all the more outrageous in that, as reflected in the claimed
Deficiency description in Exhibit 39, page 3, the subsistence reimbursement rate change
from $11.42 per day to $11.58 per day was not even published in the Federal Register
until Wednesday, March 5, 2014, a month after the Berglings Honey Farm ETA 790 had
been pending for a month. Additionally, having listed its first demand as described
above,

an

impermissible

demand,

under

the

heading,

“ENCLOSURE

FOR

UNACCEPTABLE APPLICATIONS,” DOL then wrongly required Berglings to
complete the same form attached as Exhibit 33, titled “Employer Sponsorship Questions
for H-A applications.” Exhibit 39, pages 5-6. Whether these questions immediately
follow the caption “ENCLOSURE FOR UNACCEPTABLE APPLICATIONS,”
particularly where the application is not unacceptable, or, as in the case of the form
questions submitted to the Berglings Honey Farm, that are under the caption, “Employer
Sponsorship Questions for H-2A Applications,” the form and its questions have never
been authorized, and they not part of the approved process under which DOL may require
- 26 1716076.1

Case 1:14-cv-00231-WO-JLW Document 1 Filed 03/19/14 Page 26 of 39

 application filings by prospective H-2A employers or for that matter by prospective H-2B
employers either.
37.

In yet other instances, the DOL failed to acknowledge receipt of the

applications at all and, upon information and belief, has taken no action whatsoever on
the pending applications.
38.

Exhibit 1, pages 1 through 9, shows the status of ILMC’s pending

applications as of Friday, March 14 at the end of the day. Exhibit 1 shows some
applications for which certifications have finally been belatedly received. Exhibit 1
shows the name of affected employer clients of ILMC, the respective employer’s Date of
Need (“DON”), the date the application for certification was received by the DOL’s
CNPC, the date of issuance of any Notice of Deficiency (“NOD”) by a certifying officer
at the CNPC, the date the employer replied to the claimed NOD, the date a Notice of
Acceptance (“NOA”) by the certifying officer was due to have been issued (the “Accept
Due” column), the date any NOA was received by the employer (the “Accept Rev’d”
column”), the date the employer’s Recruitment Report (“RR”) concerning results of
efforts to recruit Americans for the job was submitted to DOL/CNCP, the date the
certification of the job order was due (listed as “Cert Due”), the date certification, if
issued, was received (listed as ‘Cert Rev’d”), the date of receipt by the employer of any
follow up reconfirmation questionnaire, listed under the column “confirm again?” in
which the employer was required to reconfirm that ILMC is the employer’s agent and the
accuracy of information in the job order, the number of workers for whom authorization
- 27 1716076.1

Case 1:14-cv-00231-WO-JLW Document 1 Filed 03/19/14 Page 27 of 39

 was requested, and “notes” regarding the application. Exhibit 1 demonstrates that the
DOL repeatedly missed mandatory deadlines and missed them by substantial margins
that cannot be accounted for by weather or other benign delays. In at least one case, DOL
sent out three (3) different sets of requests for modifications of job orders to an individual
employer. None of these requests met the statutory deadline within which DOL may issue
a single comprehensive request for a modification or modifications in light of one or
more deficiencies in the application content based on regulatory textual provisions,
including assurances, that DOL may require.
39.

Notwithstanding the absence of any legal authority for DOL’s demands that

employers provide duplicative “assurances,” many employers have attempted to respond
in a desperate attempt to meet their labor needs. As described above, these attempts have
frequently been unsuccessful through no fault of the employers. The problems
experienced by these employers demonstrate the rationale behind the Paperwork
Reduction Act requirements, including the required designation on the face of the form
that it been approved by the Office of Management and Budget. 44 U.S.C.
§ 3506(c)(2)(A) before anyone may be required to respond to a Federal agency request
for information on a form.
40.

As demonstrated in Exhibit 1, the DOL has acted or omitted to act in the

following unlawful or unauthorized ways:

- 28 1716076.1

Case 1:14-cv-00231-WO-JLW Document 1 Filed 03/19/14 Page 28 of 39

 (a)

As of 5:00 p.m., Friday, March 14, 2014, ILMC had filed 77 H-2A cases on
the list that were processed outside of the statutory time limit, including 10
cases with 0 action.

(b)

As of the same time and date, ILMC had 48 cases in which the
certifications were overdue or were certified outside of the statutory
deadline within which certifications were due to have been issued.

(c)

As of the same time and date, ILMC had 63 cases for which Notices of
Acceptance were overdue or in which Notices of Deficiency were provided
outside the deadline required by statute.

(d)

As of the same time and date, there were 3 H-2B cases that are being or
were processed outside of regulatory deadlines.

(e)

As of the same time and date, the DOL had failed to respond to or issue
acceptances to 25 employers who had received and had timely responded to
the unlawful reconfirmation questionnaire forms , to certify yet again that
ILMC was in fact their agent, that they were in fact requesting the workers
and that they would comply with their obligations under the H-2A program.

41.

ILMC and individual employers have sought administrative review of

DOL’s unlawful actions through the DOL’s Office of Administrative Law Judges
(“OALJ”) in an attempt obtain relief and to exhaust their administrative remedies before
resorting to this action, as reflected in the Order entered March 12, 2014, by Associate
Chief Administrative Law Judge, William S. Colwell. A copy of Judge Colwell’s March
- 29 1716076.1

Case 1:14-cv-00231-WO-JLW Document 1 Filed 03/19/14 Page 29 of 39

 12 Order of which is attached as Exhibit 41. Cases filed by ILMC clients before Judge
Colwell at that time were consolidated a case styled in the matters of J. E. Cooley Farms,
et al., ALJ No. 2014-TLC-00054. Judge Colwell questioned whether he has authority to
enter any Order, given that there has been no official denial of certification although there
may have been may a “constructive” denial.

Accordingly, there is no effective

administrative remedy available to ILMC or its client employers through the
administrative processes of the United States Department of Labor. For employers that
needed workers in early March (already passed), their crop losses will be substantial and
irrevocable, causing them irreparable financial hardship, and damage to their business
reputations as well as to the business reputation of ILMC, to which they delegated the
task of representing them before the DOL to enable them to obtain legal agricultural
workers. Neither the employers nor ILMC has any adequate remedy at law other than the
intervention of this Court to require DOL to immediately perform the actions it is
compelled to perform, using the same standards lawfully and evenly applied with respect
to other employers and other agents.
DOL’S UNLAWFUL ACTIONS WITH RESPECT TO ILMC
AND ITS CLIENTS UNDER THE H-2B PROGRAM
42.

ILMC incorporates by reference the allegations of Paragraphs 1-41 of the

Complaint as if fully set forth herein.
43.

The regulations issued by DOL with respect to the H-2B (non-agricultural)

labor certification application and issuance process are set forth at 20 CFR § 655 Subpart
A, 655.1-655.81 (2012).
- 30 1716076.1

Case 1:14-cv-00231-WO-JLW Document 1 Filed 03/19/14 Page 30 of 39

 44.

Having published these regulations, the Secretary and DOL must at least

comply with the requirements of the regulations to act promptly upon employers’
certification applications and not to add new requirements that are not even part of the
regulations.. There is, however, serious legal question as to the authority of the Secretary
to have promulgated any such regulations to govern the H-2B program. Under 8 U.S.C.
§ 1184(c)(1), as amended by 8 U.S.C. § 1103, “[t]he question of importing any alien as a
nonimmigrant under [the H-2B Program] in any specific case or specific cases shall be
determined by [the Secretary of Homeland Security] “after consultation with appropriate
agencies of the Government, upon petition of the importing employer.” The statute says
such petition for authorization to issue a visa shall be in such form and contain. such
information as the Attorney General, now pursuant to 8 U.S.C. § 1103, the Secretary of
the Department of Homeland Security, “shall prescribe.” The U.S. Court of Appeals for
the Eleventh Circuit has ruled that this provision gives no statutory authority to the
Secretary of Labor to issue rules with respect to H-2B Program in Bayou Lawn &
Landscape Services v. Department of Labor, 713 F.3d 1080 (11th Cir. 2013).
45.

Calling the matter “a close question,” in Louisiana Forestry Ass’n Inc. v.

Secretary of Labor, CA No. 12-4030 (3rd Cir. Feb. 5, 2014), the U.S. Court of Appeals
for the Third Circuit found that the Secretary of Labor may exercise such authority.
Regulations at 20 CFR § 655 Subpart A currently in the 2013 edition of the Official Code
of Federal Regulations are not in effect. These regulations were enjoined and were never
implemented. Bayou Lawn & Landscape Services v. Solis, CA No. 12-cv-00183 (N.D.
- 31 1716076.1

Case 1:14-cv-00231-WO-JLW Document 1 Filed 03/19/14 Page 31 of 39

 Fla. April 26, 2012) at 8. Notice of the injunction against the implementation of these
2012 H-2B regulations that DOL had published in the 2013 Code of Federal Regulations
was issued by the DOL, Employment and Training Administration, by Federal Register
Notice at 77 Fed. Reg. 28765 (May 16, 2012).

In this regulatory guidance, DOL

informed affected persons that the regulations that would be used in connection with the
processing of H-2B petitions are those published at 73 Fed. Reg. 78020 et seq. (Dec. 19,
2008) (“the 2008 H-2B Rule”). Subsequently, a new H-2B interim final “wage” rule was
issued April 24, 2013 at 78 Fed. Reg. 24074 (April 24, 2013). This new wage-setting rule
replaces the wage-setting process for jobs for which wages under the 2008 H-2B Rule
were set based on DOL’s Bureau of Labor Statistics, Occupational Employment Statistics
Survey (“OES Survey”) data. The only change from the 2008 H-2B Program regulations
is the wage-setting methodology. Even though there is serious legal question as to
whether DOL has power to regulate and demand any attestations, document filings and
the like, ILMC and its clients have fully complied with DOL’s rules pertaining to the H2B application process. Like H-2A agricultural employers, H-2B dependent employer
users of lawfully present, authorized temporary foreign workers in seafood processing
operations, restaurants, landscaping, resorts and many other enterprises that depend on
the availability of seasonal and temporary workers rely on DOL’s prompt and consistent
compliance with its own voluntarily assumed deadlines for action on their applications
that DOL adopted in a purported notice and comment APA rule making. Under the
currently effective H-2B regulations published at 20 CFR § 655.23 (2012), as earlier
- 32 1716076.1

Case 1:14-cv-00231-WO-JLW Document 1 Filed 03/19/14 Page 32 of 39

 published in the above-referenced 2008 Federal Register, the certifying officer is allowed
to issue a Request for Information (“RFI”) “within 7 calendar days of the receipt of the
application [of an employer] and send it by means normally assuring next-day delivery.”
20 CFR § 655.23(c). As in the case of a request for modification of an application in the
H-2A program, the “RFI [issued in connection with an H-2B application] must specify
the reason(s) why the application is not sufficient to grant temporary labor certification,
citing the relevant regulatory standard(s) and/or special procedure(s)” applicable to the
application. 20 CFR § 655.23(c)(2). Note that the RFI may list more than one reason(s)
and more than one “relevant regulatory standard(s), but except in unusual
circumstances,” the certifying officer may not issue multiple requests for additional
information “prior to issuing a Final Determination.” The regulations are very explicit:
If unusual circumstances warrant, the CO may issue one or more
additional RFIs prior to issuing a Final Determination.
20 CFR § 655.23(c)(2)(iii) (Emphasis supplied).
46.

As in the case of the H-2A processes, there are deadlines within which the

certifying officer must act on an application.
The CO will issue the Final Determination or the additional RFI
within 7 business days of receipt of the employer’s response, or
within 60 days of the employer’s date of need, whichever is later.
20 CFR § 655.23(c)(3).

- 33 1716076.1

Case 1:14-cv-00231-WO-JLW Document 1 Filed 03/19/14 Page 33 of 39

 47.

As in the case of the H-2A Program, processes may be undertaken on

behalf of H-2B prospective employers by agents. The term “agent” is defined as “a legal
entity or person authorized to act on behalf of the employer for temporary nonagricultural labor certification purposes that is not itself as an employer as defined in this
subpart.”

20 CFR § 655.3(b) (definition of “agent”). As in the case of the H-2A

regulations, the agents participated in the development of the H-2B rules and their roles
were recognized in the process and in the adopted regulations. See, e.g., 73 Fed. Reg.
78023, 78025, 78035, 78036, 78053, 78058 (Dec. 19, 2008).
48.

Even assuming there were statutory or other authorization for the issuance

of form questionnaires questioning the status of agents or their legal authority to act on
behalf of their H-2B employer clients, there is no authority cited within the 20 CFR
§ 655, Subpart A H-2B regulations for the issuance of questionnaires that essentially
challenge the authority of an agent to act on behalf of an employer for which it has
submitted signed documentation in accordance with other requirements of the Subpart.
49.

Despite the lack of legal authority, many H-2B clients of ILMC have

received questionnaires in the form of Exhibit 33 requiring them to “confirm again” the
status of ILMC as their agent and the content of their job order. Like those described
above with respect to H-2A employers, these form questionnaires bear no evidence of
having been approved by the Office of Management and Budget or otherwise indicate
that the forms were issued in compliance with the Paperwork Reduction Act. These
actions have resulted in additional confusion, delay, waste and irreparable damage to
- 34 1716076.1

Case 1:14-cv-00231-WO-JLW Document 1 Filed 03/19/14 Page 34 of 39

 ILMC and its H-2B clients. As in the case of ILMC’s farmer clients who have been
unable to submit responses to the questionnaires/reconfirmations through a facsimile
machine to a telephone number that does not work, some H-2B employers do not have
ready access to scanning machines and have been unable to respond to these
questionnaires by scanning their signatures into a computer and responding in that
manner. When they have attempted to fax the documents to the DOL, some have been
unable to get through. The result has been unlawful delay in obtaining H-2B workers,
causing irreparable financial and other harm to the H-2B employers and irreparable harm
to their business reputations, as well as to the business reputation of ILMC, to which
these employers have delegated responsibility for obtaining legal H-2B workers.
50.

As shown by Exhibit 1, page 9, George’s Market & Nursery needs five (5)

temporary or seasonal works to operate its business, and it is an ILMC client that has
suffered irreparable injury because of DOL’s failure to process its H-2B Application
under the promised time frame and in accordance with the established processes. Even
though the Secretary of Labor is not required by statute to obtain approval of proposed
regulations by the Secretary of Homeland Security and the Secretary of Agriculture, as is
the case with respect to regulations issued under the H-2B program, assuming that the
Secretary of Labor has any power at all to issue any legislative rules under the H-2B
program, the Secretary must follow the processes it has promised employer applicants it
will follow via the regulations it has adopted. It may not make up ad hoc rules and
requirements or extend deadlines it has said it will meet. Under the H-2B Program, there
- 35 1716076.1

Case 1:14-cv-00231-WO-JLW Document 1 Filed 03/19/14 Page 35 of 39

 is a statutory 66,000 numerical limit (a “cap”) on the total number of aliens who may be
issued an H-2B visa during a fiscal year. Currently, the H-2B cap is 33,000 workers,
allocated in the first half of the year (beginning October 1 through March 31). Once
33,000 visas are issued between October 1 and the following March 31, no additional H2B visas may be issued during this time frame.

The George’s Market & Nursery

application for H-2B workers was submitted by ILMC as agent and received by the
Chicago National Processing Center on February 11, 2014. DOL should have submitted
any Request for Information (RFI) no later than seven (7) days later, by February 19,
2014, according to DOL’s own time limit.

Notwithstanding this time limit, DOL

submitted an RFI directly to George’s Market & Nursery on March 10, 2014, almost a
month after the due date for any RFI to be submitted. The RFI consisted solely of a
questionnaire request for reconfirmation of the agent status of ILMC to act on its behalf
and certain information concerning the job that had already been submitted under oath or
affirmation. This is the same questionnaire request for reconfirmation form as Exhibit
33 that has been submitted to numerous ILMC clients, bypassing ILMC as the agent.
Even though George’s Market had immediately responded to this RFI/questionnaire
request for reconfirmation on the same day it received this request, George’s Market was
not certified until March 13. On March 14, 2014, the certification was received, but the
statutory cap on the number of visas that may be issued until March 31 was reached the
same day. On information and belief, 1) if DOL had not submitted any such improper
and unauthorized RFI or 2) even if DOL had submitted an improper RFI to George’s
- 36 1716076.1

Case 1:14-cv-00231-WO-JLW Document 1 Filed 03/19/14 Page 36 of 39

 Market by the date any RFI was due to have been submitted, George’s Market &
Nursery’s could have made its application for visa issuance to the U.S.C.I.S. in time so
that the statutory cap on visas would not have been reached before the U.S.C.I.S. would
have processed its application, and it would have been authorized to hire a legal and
temporary workforce to operate its business. As it is, George’s Market & Nursery must
start the whole H-2B advertising and application process all over again to get in line for
five (5) of the 33,000 visas that can be issued between April 1 and September 30, if it will
not have missed so much of its season that it is not even worth the time and expense of
another application process.
PRAYER FOR RELIEF
Plaintiff ILMC hereby prays the Court for the following relief, as well as other
appropriate relief, which it shall seek through a preliminary injunction, for which it shall
ask an expedited hearing date, through a permanent injunction against both Defendants
and through the issuance of a writ of mandamus directed to the Secretary
1.

ILMC therefore asks that in accordance with the Administrative Procedure

Act, 5 U.S.C. §§ 551(13) and 706, the Secretary and DOL be required immediately and in
good faith 1) to complete agency actions by the mandatory timelines set out in statute and
regulation, that have been unlawfully withheld or unreasonably delayed and to meet such
deadlines in the future, 2) to issue expeditiously certifications in all cases in which such
issuances are appropriate and to meet applicable statutory and regulatory deadlines for
doing so in the future, 3) to follow processes that required by statute and regulations and
- 37 1716076.1

Case 1:14-cv-00231-WO-JLW Document 1 Filed 03/19/14 Page 37 of 39

 established for routine processing for expeditious processing of H-2A and H-2B
certification applications, and 4) to discontinue immediately the processes and procedures
of requiring employers to re-certify their designation of ILMC as their lawful agent in
dealing with the DOL and other information already provided to DOL in writing on its
required forms under oath or affirmation and other ad hoc processes that DOL had
adopted for dealing with ILMC and its clients.
2.

ILMC asks that a writ of mandamus be issued pursuant to 28 U.S.C. § 1361

to compel the Secretary, as an officer or employee of the United States or an agency
thereof, to perform all duties owed to ILMC, including the processing of all applications
in accordance with the strict time deadlines provided in statute and regulation in the case
of H-2A applications and regulation in the case of H-2B applications.

Respectfully submitted this 19th day of March, 2014
/s/J. Michael Honeycutt
J. Michael Honeycutt
North Carolina State Bar No. 33437
FISHER & PHILLIPS LLP
227 West Trade Street, Suite 2020
Charlotte, North Carolina 28202
(704) 334-4565
(704) 334-9774, Fax
Email: mhoneycutt@laborlawyers.com

- 38 1716076.1

Case 1:14-cv-00231-WO-JLW Document 1 Filed 03/19/14 Page 38 of 39

 /s/ Ann Margaret Pointer
Ann Margaret Pointer
Georgia State Bar No. 582750
FISHER & PHILLIPS LLP
1075 Peachtree St., NE
Suite 3500
Atlanta, Georgia 30309
(404) 231-1400
(404) 240-4249, Fax
apointer@laborlawyers.com
Pro Hac Vice to be filed
/s/ Leon R. Sequeira
Leon R. Sequeira
Missouri State Bar No. 52403
LAW OFFICES OF LEON SEQUEIRA
11205 Highway 329
Prospect, KY 40059
(202) 255-9023
(502) 808-6023, Fax
lsequeira@lrs-law.com
Pro Hac Vice to be filed
/s/ William Randolph Loftis, Jr.
William Randolph Loftis, Jr.
North Carolina State Bar No. 2774
CONSTANGY BROOKS &SMITH, LLP
100 N. Cherry Street, Suite 300
Winston-Salem, NC 27101
(336) 721-1001
(336) 748-9112, Fax
Email: rloftis@constangy.com
/s/ Robin E. Shea
Robin E. Shea
North Carolina State Bar No. 15862
CONSTANGY BROOKS &SMITH, LLP
100 N. Cherry Street, Suite 300
Winston-Salem, NC 27101
(336) 721-1001
(336) 748-9112, Fax
Email: rshea@constangy.com
- 39 1716076.1

Case 1:14-cv-00231-WO-JLW Document 1 Filed 03/19/14 Page 39 of 39