motion for preliminary injunction...jeff joseph 12203 east second ave. aurora, co 80011 (303)...

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 of 28

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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

CONCLUSION ............................................................................................................................. 25

PRAYER FOR RELIEF .............................................................................................................. 25


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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

Eyeticket Corp. v. Unisys Corp., 144 F.Supp.2d 527 (E.D. Va. 2001) ....................................... 14

Garcia v. Google, Inc., 786 F.3d 733 (9th Cir. 2015) .................................................................... 8

Gorman v. Coogan, 273 F.Supp.2d 131 (D. Me. 2003) .............................................................. 14

Heublein, Inc. v. Federal Trade Com., 539 F.Supp. 122 (D.Conn. 1982) .................................. 14

Marlyn v. Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 879 (9th Cir. 2009) .......................................................................................................................... 8

Matter of Golden Dragon Chinese Restaurant, 19 I&N Dec. 238 (Comm’r 1984) ................... 10

Med. Shoppe Int’l, Inc., v. S.B.S. Pill Dr., Inc.¸336 F.3d 801 (8th Cir. 2003) ............................. 15

Novartis Consumer Health, Inc. v. Johnson & Johnson-Merck Consumer Pharms. Co., 290 F.3d 578 (3d Cir. 2002) .......................................................................................... 15

Raich v. Ashcroft, 248 F.Supp.2d 918 (C.D. Cal. 2003) ............................................................. 18

Stanley v. Univ. of S. Cal., 13 F.3d 1313 (9th Cir. 1994) .............................................................. 8

Tom Doherty Assocs. v. Saban Entertainment, Inc., 60 F.3d 27 (2d Cir. 1995) ........................... 9

U.S. v. Cardozo-Fonseca, 480 U.S. 421 (1987) .......................................................................... 13

United States v. Odessa Union Warehouse Co-op, 833 F.2d 172 (9th Cir. 1987) ....................... 14

Vonage Holdings Corp. v. Minn. PUC, 290 F.Supp.2d 993 (D.Minn. 2003) ............................. 15

STATUTES

28 U.S.C. § 1651 ........................................................................................................................... 4

28 U.S.C. § 2201 ........................................................................................................................... 4

28 U.S.C. § 2202 ........................................................................................................................... 5

28 U.S.C. § 1331 ........................................................................................................................... 4

28 U.S.C. § 1391(e) ...................................................................................................................... 5

Administrative Procedures Act (“APA”), 5 U.S.C. § 701 et. seq. ................................................ 4

Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101 et seq. ............................................. 4


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OTHER AUTHORITIES

73 Fed. Reg. 78020-78021 (Dec. 19, 2008) ................................................................................ 11

RULES

F.R. Civ. P. 57 ............................................................................................................................... 5

TREATISES

Adjudicator’s Field Manual, § 11.1(c) ........................................................................................ 13

REGULATIONS

8 C.F.R §214.2(h)(6)(ii)(B)(1) .......................................................................................... 9, 12, 13

8 C.F.R. § 214.2(h)(6)(ii)(B)(3) .............................................................................................. 9, 12


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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).


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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.


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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


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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)


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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


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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.

8 C.F.R. § 214.2(h)(6)(ii)(B)(3) (emphasis added).

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.

8 C.F.R. §214.2(h)(6)(ii)(B)(1) (emphasis added)..

25. As discussed below, Plaintiffs and Proposed Class will demonstrate on the merits

that the legal interpretation of this regulation, and the legal definition of “peakload,” nd

“one-time occurrence,” as well as a long history of approvals without a change in the law

and without a change in the operative facts, entitles Plaintiffs and Proposed Class to H-2B


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approval now and in the future. Upon information and belief, USCIS has begun to deny

H-2B petitions in numerous, and possibly thousands, of cases based on a new

interpretation of temporary need, which affects all petitioners who seek H-2B temporary

employees. The legal question of the definition of peakload and one-time occurrence,

thus, is “so serious, substantial, difficult, and doubtful as to make the issue ripe for

litigation and deserving of more deliberate investigation.” Davis v. Mineta, 302 F.2d

1104, 1111 (10th Cir. 2002). A preliminary injunction is therefore appropriate.

Department of Labor Certification

26. The Guam Department of Labor (“DOL”) has already determined that Plaintiffs’ and

Proposed Class’ positions, qualify as peakload or one-time occurrence positions. USCIS cites

Matter of Golden Dragon Chinese Restaurant, 19 I&N Dec. 238 (Comm’r 1984) to conclude that

the DOL determination is advisory only, and that USCIS can accept or reject that determination

when making its own decision on an H-2B petition.4 However, Golden Dragon also states that a

“temporary labor certification determination is to be overridden only upon presentation by a

petitioner of ‘countervailing evidence’ which serves to demonstrate the error or inapplicability of

such determination.” Id. at 239. This statement suggests that the temporary labor certification

should not be overridden – either because it certified or did not certify the petition – unless there

is evidence indicating that the certification is erroneous or inapplicable. Here, neither USCIS nor

Plaintiffs and Proposed Class have presented any evidence that would indicate that the DOL’s

labor certification should be overridden.

27. Furthermore, Golden Dragon was issued in 1984. Since then, regulations have been

promulgated that demonstrate that it is the responsibility of the DOL, not USCIS, to determine

whether the position is sufficiently temporary to qualify for the H-2B visa program. An employer

4 Exhibit 1.


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must first apply to the DOL for labor certification using ETA Form 750G. As part of this

application process, the employer must demonstrate to the DOL “that its need for the services or

labor is temporary as defined by one of four regulatory standards,” which include a peakload

need. 73 Fed. Reg. 78020-78021 (Dec. 19, 2008). “The employer’s need is considered

temporary if justified to the Secretary as either a one-time occurrence, a seasonal need, a peakload

need, or an intermittent need, as defined by the Department of Homeland Security.” 73 Fed. Reg.

78055 (emphasis added); 73 Fed. Reg. 78020 (defining “Secretary” as the Secretary of Labor).

28. Here, the Guam DOL approved Plaintiffs’ and Proposed Class’ Temporary Labor

Certification request, ETA Form 750G. On the form, the employers attested that the positions are

either peakload or one-time occurrence, and the DOL issued the labor certification accordingly.

The employers also submitted a statement of temporary need. Because the DOL – the agency in

charge of determining whether the position is indeed temporary – has determined that Plaiintiffs’

and Proposed Class’ positions are peakload or one-time occurrence positions, USCIS cannot now

determine otherwise. To do so is arbitrary, capricious, an abuse of discretion, and not in

accordance with the law.

Plain Language of the Regulations 29. The plain language of 8 C.F.R. § 214.2(h)(6)(ii)(B)(3) recognizes that the temporary need

for a peakload position may be based on a short-term demand 8 C.F.R. § 214.2(h)(6)(ii)(B)(3)

(stating that an employer must supplement its permanent staff “on a temporary basis due to a

seasonal or short-term demand”) and one-time occurrence may be for an employment situation

that is otherwise permanent, but a temporary event of short duration has created the need for a

temporary worker. 8 C.F.R. §214.2(h)(6)(ii)(B)(1).

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,


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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


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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,

833 F.2d 172, 175 (9th Cir. 1987). The Administrative Procedures Act specifically authorizes

injunctive relief and thus a showing of irreparable harm should not be necessary. Heublein, Inc.


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v. Federal Trade Com., 539 F.Supp. 122, 128 (D.Conn. 1982); Community Nutrition Institute v.

Butz, 420 F.Supp. 751, 757 (D.D.C. 1976).

40. Nonetheless, Plaintiffs and Proposed Class will face irreparable harm.

41. As a prerequisite to the issuance of a temporary restraining order, the petitioner must

show a real, immediate, and irreparable injury that will occur pending final hearing, and that the

order is necessary to prevent such injury or damage. American Investors Life Ins. Co. v. Green

Shield Plan, Inc., 145 Colo. 188, 358 P.2d 473 (1960).

42. Economic loss to the movant can be sufficient to establish irreparable injury if it threatens

the existence of the business. Eyeticket Corp. v. Unisys Corp., 144 F.Supp.2d 527, 549 (E.D. Va.

2001). Economic loss can also be sufficient if there is a threat of imminent bankruptcy. Gorman

v. Coogan, 273 F.Supp.2d 131, 134 (D. Me. 2003).

43. Additionally loss of sales, contracts or market share can constitute irreparable harm. “In a

competitive industry where consumers are brand-loyal, we believe that a loss of market share is a

‘potential harm which cannot be redressed by a legal or equitable remedy following a trial.”

Novartis Consumer Health, Inc. v. Johnson & Johnson-Merck Consumer Pharms. Co., 290 F.3d

578, 593 (3d Cir. 2002).

44. Loss of goodwill and harm to business reputation can also constitute irreparable harm.

“Loss of intangible assets such as reputation and goodwill is difficult, if not impossible, to

quantify in terms of dollars.” Med. Shoppe Int’l, Inc., v. S.B.S. Pill Dr., Inc.¸336 F.3d 801, 705

(8th Cir. 2003). Loss of goodwill and harm to reputation has been shown where a Plaintiff is

forced to stop offering particular goods or services for various reasons. Vonage Holdings Corp.

v. Minn. PUC, 290 F.Supp.2d 993, 1003 (D.Minn. 2003).

45. Each of the Plaintiffs in this lawsuit faces irreparable harms based on the denial of the

H2B petitions. Some of those harms are similar amongst the Plaintiffs. Other harms are unique


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to each individual Plaintiff. Most of the harms are economic in nature, but cannot be resolved by

monetary damages. The Plaintiffs 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 2016-2017.

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.

46. 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%.

47. 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.

48. Plaintiff Guam Contractors Association is a non-profit corporation founded in 1959 and

dedicated to promoting the common business interests of its member contractors, subcontractors,

material suppliers, equipment lessors and other businesses related to the construction industry on

Guam. The irreparable harm to the association rests on the fact that the majority of the members

of the GCA rely on the H2B program for continued success and vitality. As such, the issue of

the denial of the H2B workers by USCIS after decades of approvals under the same set of

operative facts has a direct impact on the members of GCA, and by extension, the GCA itself.


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49. Plaintiff Ace Builders is one of the largest users of the H2B program in the entire United

States. The company currently has over $100,000,000 in contracts, 75% of which are military

contracts. Many of the contracts rely on welders. These welders must have D-1-1 certifications

which are not available in Guam. Ace Builders has a project funded under DPRI (Marines

Relocation) and is subject to special provisions the Davis Bacon Wage act and are also required

to advertise for available positions in six states and four U.S. Territories aside from Guam.

Despite this heightened advertising requirement, Ace Builders has been unable to find the

necessary domestic workers to complete the projects. Ace Builders faces significant irreparable

harm from the denials. Just one of the military contracts has a liquidated damages clause of

$56,000.00 per day for failure to timely complete the project. Additionally, if the company

cannot complete existing projects, the company will not be able to get bonded for future

contracts. The company has stopped bidding on future projects and is facing laying off U.S.

workers. Additionally, the existing work force is working overtime to complete the projects due

to the shortage of workers and this means more safety and injury concerns and well as the costs of

additional supervision. Ace anticipates that the costs to perform future contracts will increase

60% in order to account for labor shortage.

50. Plaintiff BME and Sons has successfully utilized the H2B program since 1991. This year,

they received 100% denials of 65 H2B workers. BME and Sons faces irreparable harm from the

denials Specifically, the company is unable unable to bid on future work. Because the typical

contract takes two years, if they do not bid on future contracts and the contracts on which they are

working are completed in the near future, they will have no future work. The company is

involved in critical infrastructure construction including the TSA capitalization at the Guam

Airport as well as the remodeling of the conveyor area and bathrooms. They also just completed


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work on wharf repair at the U.S. Naval base. The company faces the prospect of liquidated

damages on existing contracts and bankruptcy if they are unable to bid on future work.

51. Plaintiff Guam Tropical Dive Shop is located on the island of Guam. Due to its distance

from the continental United States and its close proximity to Asia, the company caters, primarily,

to a largely Asian clientele and relies on Japanese-speaking SCUBA dive instructors for its

continued success. Because of the large number of Japanese tourist to the island, it is essential for

logistical and safety reasons that the SCUBA diving instructors be completely bilingual in

English and Japanese as well as possess the necessary SCUBA certifications. For this reason,

GTDS has relied on the H2B program to bring in Japanese speaking dive instructors from Japan

since 2006. Up until 2016, the company had a 100% success rate with Japanese H2B dive

instructors. This year, two of the cases were denied and GTDS withdrew its request for a new H-

2B petition after receiving a Request for Further Evidence which was written in the vein of a

Notice of Intent to Deny. If the company is unable to obtain fully bi-lingual certified SCUBA

instructors from Japan, it faces irreparable harm because the safety of the customers would be

compromised and the company may not be able to service a large portion of their clientele.

52. Plaintiff Guam Radiology Consultants is the only provider on the island of cutting edge

digital mammograms and nuclear medicine. These are advanced methods of scanning for cancer

and this technology is not available anywhere else in Micronesia, Palau or Saipan. Currently, the

clinic services people on the island including Guam residents as well as the military and their

families. In addition, the clinic is the closest facility for military members in Okinawa so they

service the military from that base. They are performing approximately 15-20 ultrasounds a day.

The current nuclear tech is a U.S. worker and it took 4 years to find this worker. The company

pays twice what a similarly situated worker would make in the Continental U.S. However, the

work is beyond the capacity of one worker. With additional military personnel coming to the


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island, there is a need for additional foreign workers to perform this work. There is no training

program for this technology on Guam and patients are now starting to be transferred to Hawaii in

order to get the necessary scans and treatment. The company faces devastating irreparable harm

from the denial of the H2Bs. Right now the company is scheduling out 3 weeks unless it is an

emergency, but it is difficult to diagnose an emergency. For example, a stomach ache might be a

rupture appendix. Without the highly-skilled H2B workers, patients are in a possible life or death

situation. A substantial threat to life or health, may constitute irreparable harm. Ali v. Ashcroft,

213 F.R.D. 390, 400-01 (W.D. Wash. 2003), Raich v. Ashcroft, 248 F.Supp.2d 918, 930 (C.D.

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


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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


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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.


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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


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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.


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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


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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,


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____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


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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

following email address:

[email protected] [email protected] [email protected] and I hereby certify that I have mailed a hard copy of the document to the above individual

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


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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


motion for preliminary injunction...jeff joseph 12203 east second ave. aurora, co 80011 (303)...

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