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Durable Manufacturing Co. v. United States Dep't of Labor

November 4, 2008

DURABLE MANUFACTURING COMPANY, ET AL., PLAINTIFFS,
v.
UNITED STATES DEPARTMENT OF LABOR, EMPLOYMENT AND TRAINING ADMINISTRATION, AND UNITED STATES DEPARTMENT OF HOMELAND SECURITY, BUREAU OF CITIZENSHIP AND IMMIGRATION SERVICES, DEFENDANTS.



The opinion of the court was delivered by: Amy J. St. Eve United States District Court Judge

MEMORANDUM OPINION AND ORDER

This case presents a challenge to administrative regulations recently adopted by the United States Department of Labor ("DOL"). Plaintiffs are a group of fourteen unaffiliated businesses that received approved labor certifications from the DOL. Plaintiffs sued the United States Department of Labor, Employment and Training Administration and the United States Department of Homeland Security, Bureau of Citizenship and Immigration Services (collectively, "Defendants"). Plaintiffs and Defendants have filed cross-motions for summary judgment. For the reasons below, the Court denies Plaintiffs' Motion for Summary Judgment, and grants Defendants' Cross-Motion for Summary Judgment.

BACKGROUND

Employers and potential immigrants seeking permanent resident status based upon present or prospective employment must comply with the Immigration and Nationality Act ("INA"). First, an alien's prospective employer must petition the DOL for a "labor certification" on the alien's behalf. Section 212(a)(5)(A) of the INA, codified at 8 U.S.C. § 1182(a)(5)(A), provides:

(i) In general. Any alien who seeks to enter the United States for the purpose of performing skilled or unskilled labor is inadmissible, unless the Secretary of Labor has determined and certified to the Secretary of State and the Attorney General that--

(I) there are not sufficient workers who are able, willing, qualified . . . and available at the time of application for a visa and admission to the United States and at the place where the alien is to perform such skilled or unskilled labor, and

(II) the employment of such alien will not adversely affect the wages and working conditions of workers in the United States similarly employed.

8 U.S.C. § 1182(a)(5)(A) (2000). The DOL approves a labor certification application when it determines that there are not sufficient American workers to perform the job in question and that the employment of an alien worker in the position will not adversely affect similarly employed American workers. Next, the prospective employer must file the approved labor certification along with a visa petition (specifically, Form I-140) with the United States Department of Homeland Security ("DHS"), Bureau of Citizenship and Immigration Services ("CIS").*fn1 The subsequent steps required to receive permanent resident status are not at issue in this case.

The Secretary of the Department of Labor (the "Secretary") has promulgated regulations governing the administration of the labor certification process. In 2007, the DOL modified its regulations regarding the time period a labor certification remained valid. Under the prior regulations, approved labor certifications remained "valid indefinitely." 20 C.F.R.§ 656.30(a) (2006). The 2007 regulation, however, states:

(1) An approved permanent labor certification granted on or after July 16, 2007 expires if not filed in support of a Form I-140 petition with the Department of Homeland Security within 180 calendar days of the date the Department of Labor granted the certification.

(2) An approved permanent labor certification granted before July 16, 2007 expires if not filed in support of a Form I-140 petition with the Department of Homeland Security within 180 calendar days of July 16, 2007.

20 C.F.R. § 656.30(b) (2008). The CIS will reject a visa petition filed with an expired labor certification. (See, e.g., R. 24, App. to Pls.' Rule 56.1 Stmt. Facts at 6.)

Plaintiffs are a group of fourteen unaffiliated business employers whose labor certification applications were approved during 2006 and 2007, some before and some after July 16, 2007. (R. 24.) In Count I, Plaintiffs assert that the Secretary exceeded the scope of her statutory authority in promulgating 20 C.F.R. § 656.30(b), and that the regulation constitutes an abuse of discretion. (R. 1, Compl. at 13.) Because Plaintiffs do not object to the administrative process that the DOL used to enact the regulation, the Court assumes that the regulation was issued through proper notice and comment rulemaking procedures under the Administrative Procedure Act, 5 U.S.C. §§ 551-559 (2000). Count I also asserts the nearly identical allegation that a validity period could only be imposed through congressional amendment of the INA. (Id. ¶ 41.) Plaintiffs further seek summary judgment declaring that 20 C.F.R. § 656.30(b) has an improper retroactive effect and cannot be applied ...


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