Successfully reported this slideshow.
We use your LinkedIn profile and activity data to personalize ads and to show you more relevant ads. You can change your ad preferences anytime.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Michael C. Saqui, Esq., SBN: 147853
Jennifer M....
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
THE CHICAGO NATIONAL
PROCESSING CENTER, CHARLEN...
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
BARAN, in her official capacity as the Director...
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
inability to deliver that crop, and the non-per...
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Harvest, Inc. to provide much of its seasonal l...
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
10. Defendants further include WILLIAM W. THOMP...
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
United States Department of Homeland Security (...
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
19. Defendants further include DOES ONE THROUGH...
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
labor shortage. Such harm, and all harms result...
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
either because there were no deficiencies or af...
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
USCIS Processing Time Information for the Calif...
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
1188. Based upon information and belief, the DO...
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
captioned “NOTICE WITHIN SEVEN DAYS OF DEFICIEN...
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
2A regulation requirements at 20 CFR Part 655, ...
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
order to the interstate recruitment system wher...
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
standards which they have created for handling ...
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
e. Fresh Harvest, Inc. (Ito Brothers #1 60 work...
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
not certified at all despite DOL being beyond t...
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
the H-2A petitions submitted by Plaintiffs. She...
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
unlawfully withheld” and “unreasonably delayed....
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
providers unable to buy their fruit from U.S. c...
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
of eligible individuals as lawfully prescribed ...
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
solely Defendants fault and were not due to any...
EXHIBIT 1
Case 2:16-cv-01932-DMG-AS Document 1 Filed 03/21/16 Page 24 of 45 Page ID #:24
afm  Adjudicator's Field Manual - Redacted Public Version  Chapter 31 Petitions for
Temporary Workers (H Classifications)....
alien for the same position, or where USCIS has other substantial evidence that it is not a
temporary position, the petiti...
continue to be employed by the same employer that obtained the previously approved petition
and must continue to perform t...
A foreign employer authorizes the agent to act on its behalf.
(2) All H-2A petitions must state the nationality of all ben...
Note:
USCIS defers to the DOL’s definition of “workday” which, according to the Fair Labor Standards
Act, generally means ...
All H-2A petitioners are required to attest in the H Classification Supplement submitted with the
Form I-129 whether:
(A) ...
If the alien has paid prohibited fees, the petition will not be denied or revoked if the petitioner
demonstrates that:
pri...
to show that each beneficiary meets the minimum employment and job training requirements
listed on the temporary labor cer...
Factors:
Evidence that a worker with the required skills is not available among U.S. workers or
from among foreign workers...
If the documentary requirements have been met and the petition is approvable, endorse the
action block. The approval perio...
sufficient evidence in response to a USCIS request for evidence that the beneficiaries from non-
eligible countries meet t...
Annually, a group of Canadian custom harvest and combine workers come to the Midwestern
United States to assist U.S. farme...
processed directly with the consulate or, if the alien is visa exempt, at the port of entry or pre-flight
inspection locat...
termination date, the reason for termination, and the date that USCIS was notified that the alien
was terminated or abscon...
As of January 18, 2009, sheepherders are no longer exempt from this 3-year limitation of stay.
See 73 FR 76906 .
Note:
H-2...
afm  Adjudicator's Field Manual - Redacted Public Version  Chapter 31 Petitions for
Temporary Workers (H Classifications)....
EXHIBIT 2
Case 2:16-cv-01932-DMG-AS Document 1 Filed 03/21/16 Page 41 of 45 Page ID #:41
Case 2:16-cv-01932-DMG-AS Document 1 Filed 03/21/16 Page 42 of 45 Page ID #:42
EXHIBIT 3
Case 2:16-cv-01932-DMG-AS Document 1 Filed 03/21/16 Page 43 of 45 Page ID #:43
3/14/2016 U.S. Citizenship and Immigration Services ­ USCIS Processing Time Information
https://egov.uscis.gov/cris/proces...
3/14/2016 U.S. Citizenship and Immigration Services ­ USCIS Processing Time Information
https://egov.uscis.gov/cris/proces...
Upcoming SlideShare
Loading in …5
×

Fresh Harvest, Inc. v. DOL, DHS, USCIS (H-2A Complaint) 3-21-2016

340 views

Published on

FRESH HARVEST v. DOL, DHS, USCIS (H-2A COMPLAINT) 3-21-2016

Published in: Business
  • Be the first to comment

  • Be the first to like this

Fresh Harvest, Inc. v. DOL, DHS, USCIS (H-2A Complaint) 3-21-2016

  1. 1. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Michael C. Saqui, Esq., SBN: 147853 Jennifer M. Schermerhorn, Esq., SBN: 225070 Glen A. Williams, Esq., SBN: 257665 THE SAQUI LAW GROUP Counselors to Management 1410 Rocky Ridge Drive, Suite 330 Roseville, California 95661 Telephone: (916) 782-8555 Facsimile: (916) 782-8565 Email: mcs@laborcounselors.com Robert P. Roy, Esq., SBN: 74982 General Counsel VENTURA COUNTY AGRICULTURAL ASSN. 916 W. Ventura Boulevard Camarillo, California 93010-8385 Telephone: (805) 388-2727 Facsimile: (805) 388-2767 Email: rob-vcaa@pacbell.net Attorneys for Plaintiff(s) FRESH HARVEST, INC; REITER BROTHERS, INC.; ITO BROS., INC.; and OCEAN BREEZE AG MANAGEMENT, LLC. IN THE UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION FRESH HARVEST, INC.; REITER BROTHERS, INC.; ITO BROS., INC.; and OCEAN BREEZE AG MANAGEMENT, LLC, Petitioners/Plaintiffs, vs. THE UNITED STATES DEPARTMENT OF LABOR, THOMAS E. PEREZ in his official capacity as the Secretary of the United States Department of Labor, THE OFFICE OF FOREIGN LABOR CERTIFICATION, WILLIAM W. THOMPSON, II, in his official capacity as the Acting Administrator of the Office of Foreign Labor Certification, Case No. PETITION FOR WRIT OF MANDAMUS AND COMPLAINT FOR DECLARATORY RELIEF AND INJUNCTIVE RELIEF 1 Petition for Writ of Mandamus Case 2:16-cv-01932-DMG-AS Document 1 Filed 03/21/16 Page 1 of 45 Page ID #:1
  2. 2. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 THE CHICAGO NATIONAL PROCESSING CENTER, CHARLENE GILES, in her official capacity as the Center Director of the Chicago National Processing Center, THE DEPARTMENT OF HOMELAND SECURITY, JEH C. JOHNSON in his capacity as the Secretary of the United States Department of Homeland Security, THE UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, LEON RODRIGUEZ in his official capacity as the Director of United States Citizenship and Immigration Services, THE CALIFORNIA SERVICE CENTER FOR THE UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICE CENTER, KATHY BARAN, in her official capacity as the Director of the California Service Center for the United States Citizenship and Immigration Services, and DOES ONE through TEN, Respondents/Defendants. COMPLAINT Petitioners/Plaintiffs FRESH HARVEST, INC., REITER BROTHERS, INC., ITO BROS., INC. and OCEAN BREEZE AG MANAGEMENT, LLC (collectively “Plaintiffs”) hereby bring this Complaint against Respondents/Defendants, THE UNITED STATES DEPARTMENT OF LABOR, THOMAS E. PEREZ in his official capacity as the Secretary of the United States Department of Labor, THE OFFICE OF FOREIGN LABOR CERTIFICATION, WILLIAM W. THOMPSON, II, in his official capacity as the Acting Administrator of the Office of Foreign Labor Certification, THE CHICAGO NATIONAL PROCESSING CENTER, CHARLENE GILES, in her official capacity as Center Director in charge of the Chicago National Processing Center, THE DEPARTMENT OF HOMELAND SECURITY, JEH JOHNSON in his capacity as the Secretary of the United States Department of Homeland Security, THE UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, LEON RODRIGUEZ in his official capacity as the Director of United States Citizenship and Immigration Services, THE CALIFORNIA SERVICE CENTER FOR THE UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICE CENTER, KATHY 2 Petition for Writ of Mandamus Case 2:16-cv-01932-DMG-AS Document 1 Filed 03/21/16 Page 2 of 45 Page ID #:2
  3. 3. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 BARAN, in her official capacity as the Director of the California Service Center for the United States Citizenship and Immigration Services, and DOES ONE through TEN, (collectively “Defendants”) alleging as follows: INTRODUCTION 1. The H-2A temporary agricultural program allows agricultural employers who anticipate a shortage of domestic workers to bring nonimmigrant foreign workers to the U.S. to perform agricultural labor or services of a temporary or seasonal nature. Participation in the H- 2A program requires employers to receive multiple levels of approvals. Specifically, employers must submit an H-2A application to the United States Department of Labor (“DOL”) with an accepted Agricultural and Food Processing Clearance Order, the Application for Temporary Employment Certification and Appendix A, attachments as appropriate and additional documentation for H-2A Labor Contractors (collectively “H-2A application”). Once that Application is certified by the DOL, employers submit an H-2A Petition for Nonimmigrant Workers (“H-2A petition”) to the United States Citizenship and Immigration Services (“USCIS”). Following USCIS approval, an employer can initiate the visa process outside the U.S. and the transfer of foreign workers to the U.S. At all times material herein, Plaintiffs have timely submitted the required H-2A applications, H-2A petitions, and all other documentation and information to allow the Defendants to timely process the applications and petitions for agricultural laborers in accordance with the mandatory statutory and regulatory timelines. 2. Plaintiffs bring this action for declaratory relief and preliminary and permanent injunctive relief as well as for the issuance of a writ of mandamus to compel Defendants to comply with statutory, regulatory, and internal policy requirements regarding the processing of H-2A applications and petitions. Here, Defendants’ persistent and continuing failure to timely process the H-2A applications and petitions deprives Plaintiffs of a sufficient workforce for the needs of Plaintiffs as labor providers and growers. The irregularity with which the H-2A applications and petitions are being processed deprives Plaintiffs of the ability to rely upon a consistent, predictable, and recurring process for obtaining the labor which is necessary for harvest. The resulting significant labor shortage is resulting in the substantial loss of crops, an 3 Petition for Writ of Mandamus Case 2:16-cv-01932-DMG-AS Document 1 Filed 03/21/16 Page 3 of 45 Page ID #:3
  4. 4. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 inability to deliver that crop, and the non-performance of multiple contracts. Further the loss of labor is resulting in an inability to satisfy commercial transactions with wholesalers and other suppliers of fresh fruit, loss of reputation, and an inability to meet commercial demand. Such a loss of supply will not only disrupt the stream of commerce but also result in increased consumer prices for fruit. Similarly, food providers unable to buy their fruit from U.S. companies will buy from foreign markets with lower quality standards and higher risks for contamination. Further, fruit rotting on the vine can result in increased Botrytis and mold and increasing the presence of rats and insects which can harm the long-term production of the plants. PARTIES 3. Plaintiff FRESH HARVEST, INC. is a premier labor provider, staffing company and harvesting company to the leafy green and berry industries. Fresh Harvest, Inc. specializes as an H-2A labor provider to its customers in both Arizona and California since 2005. Fresh Harvest, Inc. provides labor to growers in Yuma, AZ, Goodyear, AZ, Imperial Valley, CA, Indio, CA, Oceanside, CA, Oxnard, CA, Salinas Valley, CA, Santa Maria, CA and other areas within Arizona and California. Fresh Harvest, Inc. is also a registered business with the CA Secretary of State with a business address in Heber, CA. Fresh Harvest, Inc. submits H-2A applications for specific seasonal labor periods, to the DOL and H-2A Petitions to the USCIS to obtain H-2A laborers to supply the necessary workforce for the growers which contract its services. Fresh Harvest, Inc.’s inability to timely obtain the labor necessary to fulfill those contracts will result in significant economic harm and harm to its reputation. 4. Plaintiff REITER BROTHERS, INC. is a berry grower which is incorporated in California and has its principal place of business in Oxnard, CA. Reiter Brothers, Inc. has contracted with Fresh Harvest, Inc. to provide much of its seasonal labor and relies upon that labor in order to grow and harvest its berries. Without the labor provided by Fresh Harvest, Inc., Reiter Brothers, Inc. will be unable to timely harvest its crops and will be unable to fulfill contracts to provide berries to various business and national food distributors. 5. Plaintiff ITO BROS., INC. is a berry grower which is incorporated in California and has its principal place of business in Ventura, CA. Ito Bros., Inc. has contracted with Fresh 4 Petition for Writ of Mandamus Case 2:16-cv-01932-DMG-AS Document 1 Filed 03/21/16 Page 4 of 45 Page ID #:4
  5. 5. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Harvest, Inc. to provide much of its seasonal labor and relies upon that labor in order to grow and harvest its berries. Without the labor provided by Fresh Harvest, Inc., Ito Bros., Inc. will be unable to timely harvest its crops and will be unable to fulfill contracts to provide berries to various business and national food distributors. 6. Plaintiff OCEAN BREEZE AG MANAGEMENT, LLC is a berry grower which is incorporated in California and has its principal place of business in Oxnard, CA. Ocean Breeze Ag Management, LLC has contracted with Fresh Harvest, Inc. to provide much of its seasonal labor and relies upon that labor in order to grow and harvest its berries. Without the labor provided by Fresh Harvest, Inc., Ocean Breeze Ag Management, LLC will be unable to timely harvest its crops and will be unable to fulfill contracts to provide berries to various business and national food distributors. 7. Defendants include the DOL which is the United States governmental department responsible for the timely processing, accepting, and certifying all H-2A applications in the U.S., including those filed by Plaintiffs, or on Plaintiffs’ behalf. As such, this governmental entity is being sued for its failure to timely engage in such actions. See, e.g., 8 U.S.C. § 1188; 20 CFR Part 655. 8. Defendants further include THOMAS E. PEREZ, who is being sued in his official capacity as the Secretary of the United States Department of Labor (“Secretary of Labor”) and as the federal officer responsible for administering the timely processing, accepting, and certifying all H-2A applications in the U.S., including those filed by Plaintiffs, or on Plaintiffs’ behalf. As such, he is being sued in his official capacity for failing to timely engage in such actions or for delegating those duties to other individuals who failed to timely engage in such actions. See, e.g., id. 9. Defendants further include the OFFICE OF FOREIGN LABOR CERTIFICATION (“OFLC”) which is an office of the DOL and is the Office responsible for the timely processing, accepting, and certifying all H-2A applications in the U.S. for the DOL, including those filed by Plaintiffs, or on Plaintiffs’ behalf. As such, this governmental entity is being sued for its failure to timely engage in such actions. See, e.g., id. 5 Petition for Writ of Mandamus Case 2:16-cv-01932-DMG-AS Document 1 Filed 03/21/16 Page 5 of 45 Page ID #:5
  6. 6. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10. Defendants further include WILLIAM W. THOMPSON, II, in his official capacity as the Acting Administrator of the Office of Foreign Labor Certification, (“Administrator of OFLC”) and as the federal officer responsible for administering the timely processing, accepting, and certifying of H-2A applications in the U.S., including those filed by Plaintiffs, or on Plaintiffs’ behalf. As such, he is being sued in his official capacity for failing to timely engage in such actions or for delegating those duties to other individuals who failed to timely engage in such actions. See, e.g., id. 11. Defendants further include the CHICAGO NATIONAL PROCESSING CENTER (“CNPC”), which is responsible for the timely processing, accepting, and certifying of H-2A applications in the U.S. on behalf of the OFLC and DOL, including those filed by Plaintiffs, or on Plaintiffs’ behalf. As such, this governmental entity is being sued for its failure to timely engage in such actions. See, e.g., id. 12. Defendants further include CHARLENE GILES, in her official capacity as the Center Director of the Chicago National Processing Center (“Director of CNPC”) and as the federal officer responsible for administering the timely processing, accepting, and certifying H- 2A applications in the U.S. which are sent to the CNPC, including those filed by Plaintiffs, or on Plaintiffs’ behalf. As such, she is being sued in her official capacity for failing to timely engage in such actions or for delegating those duties to other individuals who failed to timely engage in such actions. See, e.g., id. 13. Defendants further include the UNITED STATES DEPARTMENT OF HOMELAND SECURITY (“DHS”), which is responsible for timely adjudication and approval of all H-2A petitions in the U.S., including those filed by Plaintiffs, or on Plaintiffs’ behalf. As such, this governmental entity is being sued for its failure to timely engage in such actions. See, e.g., Sheikh v. United States Dep’t of Homeland Sec., 685 F. Supp. 2d 1076, 1086-94 (C.D. Cal. 2009); USCIS Adjudicator’s Field Manual, Chapter 31.4(c) (2009) and subsequent updates. A true and correct copy of the USCIS Adjudicator’s Field Manual, Chapter 31.4(c) is attached hereto as Exhibit 1, and incorporated as if stated in its entirety herein (“AFM Rules”). 14. Defendants further include JEH JOHNSON in his capacity as the Secretary of the 6 Petition for Writ of Mandamus Case 2:16-cv-01932-DMG-AS Document 1 Filed 03/21/16 Page 6 of 45 Page ID #:6
  7. 7. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 United States Department of Homeland Security (“Secretary of DHS”) and as the federal officer responsible for administering the timely adjudication and approval of all H-2A petitions in the U.S., including those filed by Plaintiffs, or on Plaintiffs’ behalf. As such, he is being sued in his official capacity for failing to timely engage in such actions or for delegating those duties to other individuals who failed to timely engage in such actions. See, e.g., id. 15. Defendants further include the USCIS, which is the agency for the DHS which is responsible for the timely adjudication and approval of all H-2A petitions in the U.S., including those filed by Plaintiffs, or on Plaintiffs’ behalf. As such, this governmental entity is being sued for its failure to timely engage in such actions. See, e.g., id. 16. Defendants further include LEON RODRIGUEZ in his official capacity as the Director of the United States Citizenship and Immigration Services (“Director of USCIS”) and as the federal officer responsible for administering the timely adjudication and approval of all H-2A petitions in the U.S., including those filed by Plaintiffs, or on Plaintiffs’ behalf. As such, he is being sued in his official capacity for failing to timely engage in such actions or for delegating those duties to other individuals who failed to timely engage in such actions. See, e.g., id. 17. Defendants further include the CALIFORNIA SERVICE CENTER FOR THE UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES (“CA Service Center”), which is the part of the DHS and is responsible for the timely adjudication and approval of all H- 2A petitions in the U.S., including those filed by Plaintiffs, or on Plaintiffs’ behalf. As such, this governmental entity is being sued for its failure to timely engage in such actions. See, e.g., id. 18. Defendants further include KATHY BARAN, in her official capacity as the Director of the California Service Center for the United States Citizenship and Immigration Services, (“Director of the Service Center”) and as the federal officer responsible for administering the timely adjudication and approval of all H-2A petitions for approximately half of the U.S., including those filed by Plaintiffs, or on Plaintiffs’ behalf, with the CA Service Center. As such, she is being sued in her official capacity for failing to timely engage in such actions or for delegating those duties to other individuals who failed to timely engage in such actions. See, e.g., id. 7 Petition for Writ of Mandamus Case 2:16-cv-01932-DMG-AS Document 1 Filed 03/21/16 Page 7 of 45 Page ID #:7
  8. 8. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 19. Defendants further include DOES ONE THROUGH TEN, inclusive, who are sued herein because Plaintiffs are ignorant of the true names and capacities of the defendants. Plaintiffs will amend this complaint to allege their true names and capacities when the same are ascertained. 20. Plaintiffs are informed and believe, and thereon allege that, at all times mentioned, each Defendant was, in doing the things complained of herein, the agent or employee of their co-defendants herein and was acting within the scope of said agency, service, employment, or representation, and that each and every defendant herein is jointly and severally liable to each and every Plaintiff for the harm caused by the failure to timely process Plaintiffs’ H-2A applications and petitions. 21. Additionally, DOL, Secretary of Labor, OFLC, Administrator of OFLC, CNPC, and Director of CNPC will hereinafter be collectively referred to as “the DOL Defendants” and DHS, Secretary of DHS, USCIS, Director of USCIS, CA Service Center, and Director of the Service Center will hereinafter be collectively referred to as “the DHS Defendants.” JURISDICTION, STANDING, AND VENUE 22. The Court has federal question jurisdiction over 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 (APA), the law that provides for judicial review of “agency action” as defined in 5 U.S.C. § 551(13) under the requirements of that law in Sections 553 and 701 et seq., declaratory relief under 28 U.S.C. § 2201(a), and the issuance of a writ of mandamus pursuant to 28 U.S.C. § 1361. Applicable statutes, regulations, and policies under which the rights of Plaintiffs have been violated are set forth at 8 U.S.C. §§ 1101(a)(15)(H)(ii)(a), 1103(a), 1184(c) and 1188; 20 CFR Part 655; and AFM Rules, Chapter 31.4(c). 23. As discussed in the party descriptions above and in the factual background section below, Plaintiffs have standing to bring this petition and complaint because their ability to fulfill labor contracts and grow and harvest their crops are being harmed, and will continue to be harmed, by Defendants’ failure to timely process H-2A applications and petitions resulting in a / / / 8 Petition for Writ of Mandamus Case 2:16-cv-01932-DMG-AS Document 1 Filed 03/21/16 Page 8 of 45 Page ID #:8
  9. 9. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 labor shortage. Such harm, and all harms resulting therefrom, can only be remedied through Defendants timely performing their duties. 24. Venue is proper in the Central District of California, Western Division. Plaintiffs are all registered corporations or companies with the California Secretary of State and are located in or have sufficient minimum contacts within the Central District of California to constitute personal jurisdiction. Further, a substantial part of the events and omissions giving rise to the claim occurred within the Central District of California since this is where all three of the growers in this case “reside” and where the H-2A labor is needed to grow and harvest their respective crops. The Defendants are agencies, or subdivisions of agencies, of the United States Government and the persons who lead those agencies, or subdivisions, are being sued in their official capacities. 28 U.S.C. §§ 1391(b), (c)(2), (d) and (e). Additionally, the CA Service Center is located within the Central District of California. FACTUAL BACKGROUND 25. The DOL Defendants must fulfill mandatory statutory deadline requirements as well as requirements of DOL regulations in connection with duly filed and completed applications by Plaintiffs who need a legal, temporary foreign workforce (pursuant to the H-2A foreign temporary worker program) because they have not found able, willing, qualified, and available United States workers to perform their seasonal or other temporary work. The DOL Defendants are statutorily required to certify a complete H-2A application not later than 30 days before the date the labor is needed. 8 U.S.C. § 1188(c); 20 CFR § 655.141(b)(3) (2013). 26. A true and correct copy of Plaintiffs’ H-2A Applications And Petitions Chart is attached as Exhibit 2, and incorporated as if stated in its entirety herein. Exhibit 2 is a listing of the H-2A applications submitted by Fresh Harvest, Inc. from January 2016 to the present. Included in Exhibit 2 is a list of the Grower, the numbers of workers needed, the worksite-county in which the workers will be working, the temporary dates the workers will be needed (SEASON), the date of the DOL filing, the deadline for a NOD to be provided by the DOL Defendants (NOD DUE DATE), the date a NOD was issued by a certifying officer for the DOL Defendants (NOD FILED), the date a Notice of Acceptance was sent by a certifying officer 9 Petition for Writ of Mandamus Case 2:16-cv-01932-DMG-AS Document 1 Filed 03/21/16 Page 9 of 45 Page ID #:9
  10. 10. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 either because there were no deficiencies or after the deficiencies were cured (NOTICE OF ACCEPTANCE), the date certification was due, the date certification was signed (DATE CERTIFIED), the date the Company submitted a petition to the USCIS (USCIS FILING DATE), the date that the Company received the receipt notice from the USCIS (RECEIPT NOTICE RECEIVED), and the USCIS approval date (APPROVAL DATE). Based on Exhibit 2, of the five growers whose seasons which have already started, only three have been certified by both the DOL Defendants and the DHS Defendants. One of those three was only certified once the season had already begun. 27. Plaintiffs have multiple applications which have not been processed, accepted, and certified by the DOL less than 30 days before the date labor or services are first required to be performed. (See Exhibit 2.) 8 U.S.C. § 1188(c)(3); 20 CFR § 655.141(b)(3) (2013). Additionally, Fresh Harvest, Inc. anticipates making additional H-2A applications. 28. So far this year, every single H-2A application, except one, made to the DOL Defendants by Plaintiffs, which has come due, has either not yet been certified or was certified three to twenty-three (23) days after the date the certification was required. (See Exhibit 2.) As a result, well over 1,600 temporary H-2A farm workers have either been certified late or not certified at all despite DOL being beyond the statutory deadline. 29. USCIS’ own policies require that they must expeditiously process H-2A petitions within approximately four to five days of receipt. AFM Rules, Chapter 31.4(c). 30. Plaintiffs have made four H-2A petitions to the USCIS, through the CA Service Center, so far this year. Fresh Harvest, Inc. will submit additional H-2A petitions, including petitions for the seven companies which currently have H-2A applications pending before the DOL once the DOL approves those applications. To date, approval times have taken between eight and fifteen days to process. (See Exhibit 2.) Further, based on information and belief, Plaintiffs understand that the USCIS has stated that the processing time for the California Service Center to adjudicate and approve H-2A petitions is currently taking one month. See, e.g., USCIS Processing Time Information for the California Service Center. A true and correct copy of / / / 10 Petition for Writ of Mandamus Case 2:16-cv-01932-DMG-AS Document 1 Filed 03/21/16 Page 10 of 45 Page ID #:10
  11. 11. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 USCIS Processing Time Information for the California Service Center (March 14, 2016) is attached as Exhibit 3, and incorporated as if stated in its entirety herein. 31. Plaintiffs are growers of berries for interstate and intrastate sale and the company which supplies labors to those growers to grow and harvest their crops. 32. These commodities are perishable commodities and a lack of labor to grow and harvest these crops will result in a loss of agricultural products. For example, of the over 1600 workers which Fresh Harvest has requested, if 1000 of those workers are unable to pick strawberries then that represents a loss of approximately 85,000 cases of strawberries for every day that the workers are delayed for a loss of approximately $1,000,000.00 per day. Likewise, having 380 of those workers unable to pick vegetables represents a loss of approximately 175,000 cartons of vegetables per week. In other words, every day of delay is resulting in a substantial amount of lost crops for the companies which contract with Fresh Harvest to provide labor. 33. The significant delays in delays in the certification of the H-2A applications and H-2A petitions is resulting in the substantial loss of crops, an inability to deliver that crop, the non-performance of multiple contracts, an inability to satisfy commercial transactions with wholesalers and other suppliers of fresh fruit, loss of reputation, and an inability to meet commercial demand. 34. Further, fruit rotting on the vine can result in future harm to the production of the fruit-bearing plant by increasing Botrytis and mold and increasing the presence of rats and insects. These cause long-term damage to the plaints’ future production. DOL STATUTORY AND REGULATORY BACKGROUND 35. The statutory authorization for the H-2A Program as a guest worker program, 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. 100-525, §§ 2(l)(2), (3), 102 Stat. 2612. 36. 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. § 11 Petition for Writ of Mandamus Case 2:16-cv-01932-DMG-AS Document 1 Filed 03/21/16 Page 11 of 45 Page ID #:11
  12. 12. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1188. Based upon information and belief, the DOL Defendants are responsible for the execution of this code section. Specifically, the DOL and the Secretary of Labor have entrusted the processing, acceptance, and certification of H-2A applications to the OFLC which is one of the offices of the DOL and run by the Administrator of OFLC. The OFLC has then entrusted the processing, acceptance, and certification of the H-2A applications to the CNPC, run by the Director of CNPC, which is either a part of the OFLC or an entity acting as an agent for the OFLC. As such, the DOL Defendants are all held to the statutory standards set forth in 8 U.S.C. § 1188 and in 20 CFR Part 655. 37. As amended in 1999, the Secretary may not require that a prospective H-2A 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). These applications are filed with the CNPC which then processes, accepts, and certifies the applications on behalf of the OFLC/DOL. 38. Once an application for temporary labor certification 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. 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.” 8 U.S.C. § 1188(c)(2)(B). 39. The statutory and regulatory mandates are built into the requirement that 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 [this section].” 8 U.S.C. § 1188(c)(3)(A). 40. The subsection now codified at 8 U.S.C. § 1188(c)(1), specifying 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, is captioned “DEADLINE FOR FILING APPLICATIONS.” (Emphasis in original.) The text, now at 8 U.S.C. § 1188(c)(2), which is 12 Petition for Writ of Mandamus Case 2:16-cv-01932-DMG-AS Document 1 Filed 03/21/16 Page 12 of 45 Page ID #:12
  13. 13. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 captioned “NOTICE WITHIN SEVEN DAYS OF DEFICIENCIES” (Emphasis in original) states that the Secretary of Labor must notify the employer in writing within seven days of filing the application if the application for certification does not meet the applicable standards for approval. The subsection that now provides that the Secretary “shall make [such certification], not later than 30 days before the date such labor or services are first required to be performed” carries the caption “ISSUANCE OF CERTIFICATION.” (Emphasis in original.) 8 U.S.C. § 1188(c)(3). These statutory instructions to the Secretary, including the requirements of 8 U.S.C. § 1188(c) as stated therein, demonstrate that H-2A time deadlines contained in the law are mandatory obligations on the Secretary of Labor and the DOL. Accordingly, these deadlines may not be varied or excused even by rulemaking. 41. There have been no amendments to the statute nor any purported regulatory changes (even though the Secretary may not dispense with statutory 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). 42. The U.S. Court of Appeals and US District Courts have previously invalidated and held unlawful action by the DOL to suspend H-2A rules as a violation of the requirements of the APA, 5 U.S.C. §§ 553 and 701 et seq. and as 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). 43. The timelines set forth by the regulations and the statutes, have built in the possibility that employers, or their agents, will have to modify their applications. In recognition of the stringent time restraints set forth in the H-2A statute requiring review and certification authorization at least thirty (30) days before date of need deadline, 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) (2013). The regulations allow a reviewing certification officer to make one such request. If 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- 13 Petition for Writ of Mandamus Case 2:16-cv-01932-DMG-AS Document 1 Filed 03/21/16 Page 13 of 45 Page ID #:13
  14. 14. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2A regulation requirements at 20 CFR Part 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) (2013). Under the standard set out in the Immigration Reform and Control Act, the DOL enacted the existing regulations that require the DOL to issue a Notice of Deficiency (NOD) to the employer which states the reasons why the application or job order fails to meet the criteria for acceptance. The DOL must 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 CFR § 655.141(b)(1) and (2) (2013). If the Employer submits a delayed response to the NOD, the DOL’s final determination will be postponed by 1 calendar day for each day that passes beyond the 5-business day period allowed. An Employer’s failure to respond to timely respond to an NOD within 12 calendar days of issuance of the NOD will result in an abandonment of the H-2A application. 20 CFR 655.142(a) (2013). If the employer, or agent, 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 expedited administrative review or a de novo administrative hearing before a DOL Administrative Law Judge. 20 CFR § 655.141(b)(3-4) (2013). Since the regulations have built-in timelines for modifications, imperfections with an application should not result in untimely processing, acceptance, or certification of the application. These timelines also correspond with the timelines set forth by statue in 8 U.S.C. § 1188. 44. 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) (2013). This notice authorizes the conditional access of the employer’s job 14 Petition for Writ of Mandamus Case 2:16-cv-01932-DMG-AS Document 1 Filed 03/21/16 Page 14 of 45 Page ID #:14
  15. 15. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 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 DHS through the USCIS to authorize the issuance of visas by a U.S. Consular office or embassy to enable H-2A workers to enter the U.S. so that the workers can be in place in time to begin work on the date of need. BACKGROUND OF DHS/USCIS POLICIES AND PRACTICES 45. Federal Courts have determined that regulations and agency practices create a “meaningful standard” by which the court may review an agency’s exercise of discretion under 5 U.S.C. 701(a)(2). Sheikh, 685 F. Supp. 2d at 1086-94. 46. The AFM Rules, Chapter 31.4, pertaining to Petitions for Temporary Workers who are agricultural workers from foreign countries, states that “[o]n August 10, 2007 then- Secretary of Homeland Security Michael Chertoff announced a series of reforms to streamline the H-2A program. As part of the reform process, it is USCIS’ goal to adjudicate and approve all H-2A petitions timely and efficiently.” The manual goes on to explain a process whereby H-2A petitions are distributed to adjudication officers within three days of receipt; the adjudication officer should adjudicate the petitions on the day the cases are assigned to them; and then, once the approval notice is generated and printed, it should be sent to the petitioner within 24 hours of the decision. See, AFM Rules, Chapter 31.4(c). 47. Based upon information and belief, the DHS Defendants are responsible for the adjudication and approval of H-2A petitions. Specifically, Plaintiffs send their H-2A Petitions to the CA Service Center which is run by the Director of the Service Center. The CA Service Center is sole and exclusive USCIS Service Center that adjudicates and approves the H-2A petitions on behalf, and/or as part, of the USCIS which is run by the Director of the USCIS. The USCIS is part of the DHS, which is run by the Secretary of DHS, and is charged with adjudicating and approving H-2A petitions. As such, the DHS Defendants can be held to the / / / 15 Petition for Writ of Mandamus Case 2:16-cv-01932-DMG-AS Document 1 Filed 03/21/16 Page 15 of 45 Page ID #:15
  16. 16. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 standards which they have created for handling the adjudication and approval of H-2A petitions under 5 U.S.C. § 701. See, Sheikh, 685 F. Supp. 2d at 1086-94; 5 U.S.C. § 706. CLAIMS FOR RELIEF FIRST CLAIM FOR RELIEF The DOL Defendants Have Failed To Timely Process Plaintiffs H-2A Applications In Violation Of Statutory And Regulatory Authority [Injunctive Relief; Mandatory Relief Pursuant to 28 U.S.C. § 1361; 28 U.S.C. § 2201(a); 5 U.S.C. § 706(1)] 48. Plaintiffs re-allege and incorporate herein the allegations contained in paragraphs 1-47 above, as though set forth fully herein. 49. Based upon information and belief, the DOL Defendants have failed to comply with statutory and regulatory deadlines to provide notice “in writing within seven days of the date of filing” if an employer’s application does not meet the standards. 8 U.S.C. § 1188(c)(2); 20 CFR § 655.141(a) (2013). Here, Plaintiffs received one such notice after 11 days. (Exhibit 2, Fresh Harvest, Inc. (Goleta#2 Blueberry Farms 23 – CA).) 50. Based upon information and belief, the DOL Defendants have failed to comply with statutory and regulatory deadlines to issue certification in the H-2A Program “not later than 30 days before the date labor or services are first required to be performed.” 8 U.S.C. § 1188(c)(3); 20 CFR § 655.141(b)(3) (2013). Here, Plaintiffs have or will receive multiple certifications well into the 30 day period, as indicated on Exhibit 2, including: a. Fresh Harvest, Inc. (Born & Sons #1 175 – AZ), season started March 1, 2016, DOL certification completed February 3, 2016 (three days late). b. Fresh Harvest, Inc. (Goleta #2 Blueberry Farms 23 – CA), season started February 29, 2016, certification completed February 9, 2016 (10 days late). c. Fresh Harvest, Inc. (Sta. Rosa 100 – CA), season started March 7, 2016, certification completed February 17, 2016 (11 days late). d. Fresh Harvest, Inc. (Ocean Breeze #1 136 – CA), season started March 14, 2016, certification completed March 7, 2016 (23 days late). 16 Petition for Writ of Mandamus Case 2:16-cv-01932-DMG-AS Document 1 Filed 03/21/16 Page 16 of 45 Page ID #:16
  17. 17. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 e. Fresh Harvest, Inc. (Ito Brothers #1 60 workers – CA) season started March 14, 2016, certification still not received and is 37 days late as of the date of this filing. f. Fresh Harvest, Inc. (Born & Sons #2 175 – AZ) season starts April 1, 2016, certification still not received and is 19 days late as of the date of this filing. g. Fresh Harvest, Inc. (Salinas lettuce 380) season starts April 1, 2016, certification still not received and is 19 days late as of the date of the filing of this complaint. h. Fresh Harvest, Inc. (Ito Bros #2 60 workers – CA) season started April 4, 2016, certification completed March 10, 2016 (five days late). i. Fresh Harvest, Inc. (Glad a Way Gardens 25) season starts April 18, 2016, certification completed March 18, 2016 (only timely certified application received to date). j. Fresh Harvest, Inc. (OB #2 119) season starts April 18, 2016, certification still not received and is two days late as of the date of this filing. k. Fresh Harvest, Inc. (Blazer Wilkinson & Harvest Mgmt - 175) season starts April 15, 2016, certification still not received and is five days late as of the date of this filing. l. Fresh Harvest, Inc. (Reiter Bros, Inc. #1 - 20) season starts April 14, 2016, certification still not received and is six days late as of the date of this filing. 51. The APA requires a court to “compel agency action unlawfully withheld or unreasonably delayed.” 5 U.S.C. § 706(1); see also, Brower v. Evans, 257 F.3d 1058, 1068-69 (9th Cir. 2001). 52. As such, based upon information and belief, the Defendants have unlawfully withheld and unreasonably delayed the processing, acceptance, and certification of H-2A applications in violation of 8 U.S.C. § 1188(c)(2); 8 U.S.C. § 1188(c)(3); 20 CFR Part 655. 53. The irregularity with which the DOL Defendants are processing, accepting, and certifying H-2A applications deprives Plaintiffs of a consistent, predictable, and recurring process for obtaining the labor which is necessary for harvest. At the time of filing, H-2A applications for well over 1,600 temporary H-2A farm workers have either been certified late or 17 Petition for Writ of Mandamus Case 2:16-cv-01932-DMG-AS Document 1 Filed 03/21/16 Page 17 of 45 Page ID #:17
  18. 18. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 not certified at all despite DOL being beyond the statutory deadline. The resulting significant labor shortage is resulting in the substantial loss of crops, an inability to deliver that crop, and the non-performance of multiple contracts. Further the loss of labor is resulting in an inability to satisfy commercial transactions with wholesalers and other suppliers of fresh fruit, loss of reputation, and an inability to meet commercial demand. Such a loss of supply will not only disrupt the stream of commerce but also result in increased consumer prices for fruit. Similarly, food providers unable to buy their fruit from U.S. companies will buy from foreign markets with lower quality standards and higher risks for contamination. Further, fruit rotting on the vine can result in increased Botrytis and mold and increasing the presence of rats and insects which can harm the long-term production of the plants. 54. Such harm can only be avoided through the DOL Defendants’ timely execution of their duties to allow the initiation of the visa process outside the U.S. and the transfer of foreign workers to the U.S. since there are insufficient numbers of domestic workers to perform the tasks required by Plaintiffs. 55. Plaintiffs are therefore entitled to declaratory relief, preliminary and permanent injunctive relief, and the issuance of a writ of mandamus in order to “compel agency action unlawfully withheld” and “unreasonably delayed.” 5 U.S.C. § 706(1); 28 U.S.C. § 1361; 28 U.S.C. § 2201(a); Brower, 257 F.3d at 1068-69. SECOND CLAIM FOR RELIEF The DHS Defendants Violated Their Own Policies Regarding The Timely Processing Of H-2A Petitions [Injunctive Relief; Mandatory Relief Pursuant to 28 U.S.C. § 1361; 28 U.S.C. § 2201(a); 5 U.S.C. § 706(1)] 56. Plaintiffs re-allege and incorporate herein the allegations contained in paragraphs 1-55 above, as though set forth fully herein. 57. Based upon information and belief, the DHS Defendants have failed to comply with their own policies and procedures by taking longer than 5 days to adjudicate and approve / / / 18 Petition for Writ of Mandamus Case 2:16-cv-01932-DMG-AS Document 1 Filed 03/21/16 Page 18 of 45 Page ID #:18
  19. 19. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the H-2A petitions submitted by Plaintiffs. Sheikh, 685 F. Supp. 2d at 1086-94; AFM Rules, Chapter 31.4(c). 58. The APA requires a court to “compel agency action unlawfully withheld or unreasonably delayed.” 5 U.S.C. § 706(1); Sheikh, 685 F. Supp. 2d at 1086-94; AFM Rules, Chapter 31.4(c). 59. As such, based upon information and belief, the Defendants have unlawfully withheld and unreasonably delayed the adjudication and approval of H-2A petitions in violation of their own policies contained in the AFM Rules, Chapter 31.4(c). Such policies create a meaningful standard by which to review agency action. Sheikh, 685 F. Supp. 2d at 1094. 60. The irregularity with which the DHS Defendants are adjudicating and approving H-2A applications deprives Plaintiffs of a consistent, predictable, and recurring process for obtaining the labor which is necessary for harvest. Such delays, if they continue, will ultimately result in a significant labor shortage. Such labor shortage has and will result in the loss of crops, an inability to deliver that crop, and the non-performance of multiple contracts. Further the loss of labor is resulting in an inability to satisfy commercial transactions with wholesalers and other suppliers of fresh fruit, loss of reputation, and an inability to meet commercial demand. Such a loss of supply will not only disrupt the stream of commerce but also result in increased consumer prices for fruit. Similarly, food providers unable to buy their fruit from U.S. companies will buy from foreign markets with lower quality standards and higher risks for contamination. Further, fruit rotting on the vine can result in increased Botrytis and mold and increasing the presence of rats and insects which can harm the long-term production of the plants. 61. Such harm can only be avoided through the DHS Defendants’ timely execution of their duties to allow the initiation of the visa process outside the U.S. and the transfer of foreign workers to the U.S. since there are insufficient numbers of domestic workers to perform the tasks required by Plaintiffs. 62. Plaintiffs are therefore entitled to declaratory relief, preliminary and permanent injunctive relief, and the issuance of a writ of mandamus in order to “compel agency action / / / 19 Petition for Writ of Mandamus Case 2:16-cv-01932-DMG-AS Document 1 Filed 03/21/16 Page 19 of 45 Page ID #:19
  20. 20. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 unlawfully withheld” and “unreasonably delayed.” 5 U.S.C. § 706(1); 28 U.S.C. § 1361; 28 U.S.C. § 2201(a); Sheikh, 685 F. Supp. 2d at 1086-94; AFM Rules, Chapter 31.4(c). THIRD CLAIM FOR RELIEF The DHS Defendants Cannot Unreasonably Delay The Timely Processing Of H-2A Petitions [Injunctive Relief; Mandatory Relief Pursuant to 28 U.S.C. § 1361; 28 U.S.C. § 2201(a); 5 U.S.C. § 706(1)] 63. Plaintiffs re-allege and incorporate herein the allegations contained in paragraphs 1-62 above, as though set forth fully herein. 64. The APA requires a court to “compel agency action unlawfully withheld or unreasonably delayed.” 5 U.S.C. § 706(1); Sheikh, 685 F. Supp. 2d at 1086-94. 65. To the extent that the DHS Defendants may not have statutory or regulatory guidelines regarding the time they have to process H-2A petitions, it is an unreasonable delay for them to not adjudicate and approve such petitions until after a grower’s season has started. Further, the clear intent of other statutes and the USCIS’ own policies and guidelines regarding how quickly petitions should be turned around which provides more than enough time for the DHS Defendants to process the petitions within the 30 day window which is supposed to be left if the DOL Defendants have timely certified the H-2A applications. 8 U.S.C. § 1188(c)(2)(A-B); 8 U.S.C. § 1188(c)(3)(A); 20 CFR Part 655; Brower, 257 F.3d at 1068-69 [citing Telecommunications Research & Action v. FCC (TRAC), 750 F.2d 70, 80 (D.C. Cir. 1984)]. 66. The irregularity with which the DHS Defendants are adjudicating and approving H-2A applications deprives Plaintiffs of a consistent, predictable, and recurring process for obtaining the labor which is necessary for harvest. The resulting significant labor shortage has and will result in the substantial loss of crops, an inability to deliver that crop, and the non- performance of multiple contracts. Further the loss of labor is resulting in an inability to satisfy commercial transactions with wholesalers and other suppliers of fresh fruit, loss of reputation, and an inability to meet commercial demand. Such a loss of supply will not only disrupt the stream of commerce but also result in increased consumer prices for fruit. Similarly, food 20 Petition for Writ of Mandamus Case 2:16-cv-01932-DMG-AS Document 1 Filed 03/21/16 Page 20 of 45 Page ID #:20
  21. 21. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 providers unable to buy their fruit from U.S. companies will buy from foreign markets with lower quality standards and higher risks for contamination. Further, fruit rotting on the vine can result in increased Botrytis and mold and increasing the presence of rats and insects which can harm the long-term production of the plants. 67. Such harm can only be avoided through the DHS Defendants’ timely execution of their duties to allow the initiation of the visa process outside the U.S. and the transfer of foreign workers to the U.S. since there are insufficient numbers of domestic workers to perform the tasks required by Plaintiffs. 68. Plaintiffs are therefore entitled to declaratory relief, preliminary and permanent injunctive relief, and the issuance of a writ of mandamus in order to “compel agency action unlawfully withheld” and “unreasonably delayed.” 5 U.S.C. § 706(1); 28 U.S.C. § 1361; 28 U.S.C. § 2201(a); Sheikh, 685 F. Supp. 2d at 1086-94; AFM Rules, Chapter 31.4(c). RELIEF REQUESTED WHEREFORE, Plaintiffs respectfully pray that this Court award relief as follows: A. Plaintiffs ask for the issuance of a temporary and, later, permanent injunction that requires the DOL Defendants, in accordance with the APA, 5 U.S.C. §§ 551(13) & 706(1), in good faith to complete actions by the mandatory timelines set out in the applicable statute and regulations, including: i. The issuance to Plaintiffs of any appropriate Notice of Deficiency or Notice of Acceptance as to H-2A applications filed by Plaintiffs within seven (7) days of the receipt by Defendants of such applications in accordance with 8 U.S.C. § 1188(c)(2) and 20 C.F.R. §655.143(a)(as to acceptances) and §655.141(a)(as to deficiencies); ii. In connection with H-2A applications filed by Plaintiffs to make, not later than 30 days before such labor or services are first required to be performed, the certification described in subsection 8 U.S.C. §1188(a)(1) if the employer has complied with the criteria for certification (including criteria for the recruitment / / / 21 Petition for Writ of Mandamus Case 2:16-cv-01932-DMG-AS Document 1 Filed 03/21/16 Page 21 of 45 Page ID #:21
  22. 22. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 of eligible individuals as lawfully prescribed by the Secretary of Labor) as set forth in 8 U.S.C. §1188(c)( 3); B. Plaintiffs ask for the issuance of a writ of mandamus pursuant to 28 U.S.C. § 1361 to compel the DOL Defendants to perform all duties owed to Plaintiffs, including the completed processing of all applications in accordance with the strict time deadlines provided in statute and regulation in the case of H-2A applications and to issue certifications in accordance with the strict specified deadlines and with statutory intent that for any action for which there is no specified deadline, agency action in advance of the employer’s date of need must be completed sufficiently in advance of the date of need to make the completed agency action of practical use to enable the availability of temporary foreign workers at the affected employer’s place of employment on the employer’s date of need; C. Plaintiffs ask for the issuance of a temporary and, later, permanent injunction that requires the DHS Defendants in accordance with the APA, 5 U.S.C. §§ 551(13) & 706(1), in good faith to complete actions according to their own policies, including: i. The AFM Rules, Chapter 31.4(c), which requires that H-2A petitions are distributed to adjudication officers within three days of receipt, the adjudication officer should adjudicate the petitions on the day the cases are assigned to them, and then once the approval notice is generated and printed it should be sent within 24 hours of the decision; D. Plaintiffs ask for the issuance of a writ of mandamus pursuant to 28 U.S.C. § 1361 to compel the DHS Defendants to perform all duties owed to Plaintiffs, including the completed processing of all H-2A petitions in accordance with the deadlines provided by the AFM Rules, Chapter 31.4(c) and that for any action for which there is no specified deadline, agency action in advance of the employer’s date of need must be completed sufficiently in advance of the date of need to make the completed agency action of practical use to enable the availability of temporary foreign workers at the affected employer’s place of employment on the employer’s date of need; E. Plaintiffs ask for a declaration that Defendants failed to comply with specified deadlines as set forth in applicable statutes, regulations, and policies and that such failures were 22 Petition for Writ of Mandamus Case 2:16-cv-01932-DMG-AS Document 1 Filed 03/21/16 Page 22 of 45 Page ID #:22
  23. 23. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 solely Defendants fault and were not due to any failure on the part of Plaintiffs who timely submitted the H-2A applications and H-2A petitions in order to obtain temporary foreign workers. See, 28 U.S.C. § 2201(a). F. Plaintiffs ask for an award for their respective attorneys’ fees and other expenses as well as costs incurred in connection with this action under the Equal Access to Justice Act, 28 U.S.C. § 2412 and 5 U.S.C. § 504 because the actions by the Defendants and their failures to act, including the Defendants’ failures to act timely, that are complained of in this action were not substantially justified and there are no special circumstances that make such an award unjust. G. Plaintiffs ask for any and all such other and further relief as this court may deem just and proper. DATED: THE SAQUI LAW GROUP Counselors to Management By: /s/ Michael C. Saqui________ Michael C. Saqui Jennifer M. Schermerhorn, Esq. Glen A. Williams, Esq. By: /s/ Robert P. Roy__________ Robert P. Roy, General Counsel Ventura County Agricultural Association Attorneys for Petitioners/Plaintiffs FRESH HARVEST, INC., REITER BROTHERS, INC., ITO BROS., INC. and OCEAN BREEZE AG MANAGEMENT, LLC 23 Petition for Writ of Mandamus March 21, 2016 Case 2:16-cv-01932-DMG-AS Document 1 Filed 03/21/16 Page 23 of 45 Page ID #:23
  24. 24. EXHIBIT 1 Case 2:16-cv-01932-DMG-AS Document 1 Filed 03/21/16 Page 24 of 45 Page ID #:24
  25. 25. afm Adjudicator's Field Manual - Redacted Public Version Chapter 31 Petitions for Temporary Workers (H Classifications). 31.4 Agricultural Workers (H-2A). Previous Document | Next Document 31.4 Agricultural Workers (H-2A). [Ch 31.4 revised 06-24-2009] (a) General . The H-2A nonimmigrant classification applies to an alien seeking to perform agricultural labor or services of a temporary or seasonal nature in the United States. USCIS defers to the Department of Labor’s determination on the temporary labor certification for H-2A employment as to whether the proffered position qualifies as agricultural. (b) Definitions . (1) Seasonal . In the H-2A context, employment is of a seasonal nature where it is tied to a certain time of the year by an event or pattern, such as a short annual growing cycle (including planting, thinning, harvesting, and similar activities). It can also apply to a longer cycle. (2) Temporary . Except in extraordinary circumstances, temporary agricultural employment does not last longer than one year. See 8 CFR 214.2(h)(5)(iv)(A) . Ordinarily, the certification by the Department of Labor (DOL) is sufficient evidence that the employment is temporary. See 8 CFR 214.2(h)(5)(iv) (B) . When, however, the employer files a permanent certification for the same alien or another Page 1 of 1631.4 Agricultural Workers (H-2A). | USCIS 3/18/2016https://www.uscis.gov/iframe/ilink/docView/AFM/HTML/AFM/0-0-0-1/0-0-0-13593/0-0-... Case 2:16-cv-01932-DMG-AS Document 1 Filed 03/21/16 Page 25 of 45 Page ID #:25
  26. 26. alien for the same position, or where USCIS has other substantial evidence that it is not a temporary position, the petition will be denied. Id. (c) Timely Processing . On August 10, 2007, then-Secretary of Homeland Security Michael Chertoff announced a series of reforms to include streamlining the H-2A program. As part of the reform process, it is USCIS’ goal to process all H-2A petitions timely and efficiently. See Memorandum: Updated Procedures for H-2A (Agricultural Worker I-129 Petitions (Oct. 19, 2007), Appendix 31-2 . In accordance with the October 19, 2007 memo, USCIS provides special handling of H-2A petitions in which: Personnel in the Service Center mail room are instructed to generate fee receipts, enter data, and route H-2A petitions for immediate distribution; H-2A petitions are distributed to adjudication officers no later than the third day after receipt; Adjudications officers are reminded to adjudicate unnamed beneficiaries’ H-2A petitions on the day the cases are assigned to them; and Once an H-2A approval notice is generated and printed, it should be sent to petitioners within 24 hours of the decision. (d) Labor Certification . An H-2A petition must be filed on Form I-129 with a single valid temporary agricultural labor certification. See 8 CFR 214.2(h)(5)(i)(A) . Generally, the original temporary labor certification should be submitted to USCIS. However, a photocopied labor certification may be accepted by USCIS in cases where the petitioner is filing multiple petitions using the same labor certification. Each subsequent petition must reference all previously filed petitions using the same temporary labor certification. The total number of beneficiaries of a petition or series of petitions based on the same temporary labor certification may not exceed the number of workers indicated on that document. See 8 CFR 214.2(h)(5)(i)(B) . In emergent circumstances, a single H-2A petition may be extended for a brief period of time up to two weeks without extending the temporary labor certification. The H-2A worker, however, must Page 2 of 1631.4 Agricultural Workers (H-2A). | USCIS 3/18/2016https://www.uscis.gov/iframe/ilink/docView/AFM/HTML/AFM/0-0-0-1/0-0-0-13593/0-0-... Case 2:16-cv-01932-DMG-AS Document 1 Filed 03/21/16 Page 26 of 45 Page ID #:26
  27. 27. continue to be employed by the same employer that obtained the previously approved petition and must continue to perform the same duties. See 8 CFR 214.2(h)(5)(x) . (e) H-2A Eligible Countries . H-2A petitions may only be approved for nationals of countries that the Secretary of Homeland Security has designated, with the concurrence of the Secretary of State, as eligible to participate in the H-2A program. The list of H-2A eligible countries will be published in a notice in the FR on a rolling basis. This list was initially developed based, in part, on an identification of the top participating countries in the H-2A and H-2B visa programs and their record of timely acceptance of the return of their nationals who are removed from the United States. Designation of countries on the H-2A list of eligible countries will be valid for one year from publication. The first H-2A eligible countries list was published in the FR on December 18, 2008. See 73 FR 77043 . This list is also posted on the USCIS website. A national from a country not on the H-2A eligible country list may only be the beneficiary of an approved H-2A petition if the Secretary of Homeland Security, in her sole and unreviewable discretion, determines that it is in the U.S. interest for that alien to be the beneficiary of such a petition. See AFM Chapter 31.4(h)(3) ; 8 CFR 214.2(h)(5)(i)(F)(1)(ii) . (f) Petitioner Requirements . (1) An H-2A petition may be filed by the employer listed on the labor certification, the employer’s agent, or the association of ’’’’U.S.’’ agricultural producers named as a joint employer on the labor certification. A U.S. agent may file a petition only in cases where: Workers are traditionally self-employed; Workers use agents to arrange short-term employment on their behalf with numerous employers; or Page 3 of 1631.4 Agricultural Workers (H-2A). | USCIS 3/18/2016https://www.uscis.gov/iframe/ilink/docView/AFM/HTML/AFM/0-0-0-1/0-0-0-13593/0-0-... Case 2:16-cv-01932-DMG-AS Document 1 Filed 03/21/16 Page 27 of 45 Page ID #:27
  28. 28. A foreign employer authorizes the agent to act on its behalf. (2) All H-2A petitions must state the nationality of all beneficiaries . See AFM Chapter 31.4(e) . To avoid processing delays, petitioners are advised to file the petitions for workers from designated H-2A eligible countries and non-eligible countries separately. See 8 CFR 214.2(h)(2)(ii) . Adjudicating officers will issue a request for evidence when petitions filed on behalf of a combination of aliens from both H-2A eligible and non-eligible countries lack sufficient evidence to establish whether the beneficiaries from non-eligible countries qualify for H-2A classification. (3) Employment-related notifications . The petitioner must agree to notify USCIS within 2 work days if: a worker fails to report to work within 5 work days of the employment start date on the petition or within 5 work days of the start date established by his or her employer, whichever is later; the agricultural labor or services for which workers were hired is completed more than 30 days earlier than the employment end date stated on the petition; or the worker has not reported for work for a period of 5 consecutive work days without the consent of the employer or the worker is terminated prior to the completion of agricultural labor or services for which he or she was hired. See 8 CFR 214.2(h)(5)(vi)(B)(1) . Instructions explaining how a petitioner should make an employment-related notification to USCIS were published in a notice in the FR on December 18, 2008. See 73 FR 77049 . Page 4 of 1631.4 Agricultural Workers (H-2A). | USCIS 3/18/2016https://www.uscis.gov/iframe/ilink/docView/AFM/HTML/AFM/0-0-0-1/0-0-0-13593/0-0-... Case 2:16-cv-01932-DMG-AS Document 1 Filed 03/21/16 Page 28 of 45 Page ID #:28
  29. 29. Note: USCIS defers to the DOL’s definition of “workday” which, according to the Fair Labor Standards Act, generally means the period between the time on any particular day when an employee commences his/her "principal activity" and the time on that day at which he/she ceases such principal activity or activities. A petitioner that fails to meet these requirements is subject to liquidated damages in the amount of $10 per violation. Failure to notify USCIS in a timely fashion may be excused at the discretion of USCIS if it is demonstrated that the delay was due to extraordinary circumstances beyond the control of the petitioner and USCIS finds the delay commensurate with the circumstances. Such a determination will be made on a case-by-case basis. If the petitioner fails to demonstrate good cause for failure to make a timely notification, USCIS will notify CBP that the petitioner is liable for liquidated damages. The petitioner will then receive a demand letter for payment directly from CBP. See 8 CFR 214.2(h)(5)(vi)(B)(3) . (4) Payment of Fees by Aliens to Obtain H-2A Employment . An H-2A petition will be denied or revoked on notice if USCIS determines that the petitioner has collected, or entered into an agreement to collect a fee or compensation as a condition of obtaining the H-2A employment, or that the petitioner knows or should have known that the beneficiary has paid or agreed to pay any facilitator, recruiter, or similar employment service as a condition of obtaining the H-2A employment. The types of fees that would be prohibited include recruitment fees, attorneys’ fees, and fees for preparation of visa applications. Prohibited fees do not include the lower of the fair market value or the actual reasonable costs of transportation to the United States and any payment of government-specified fees required of persons seeking to travel to the United States (e.g., fees required by a foreign government for issuance of passports, fees imposed by the U.S. Department of State for issuance of visas , inspection fees), except where the passing of such costs to the worker is prohibited by statute or by DOL regulation. See e.g. , Arriaga v. Florida Pacific Farms, L.L.C. , 305 F.3d 1228 (11th Cir. 2002) (under FLSA, transportation from Mexico to Florida and visa costs under H-2A program may not be passed to H-2A workers). Page 5 of 1631.4 Agricultural Workers (H-2A). | USCIS 3/18/2016https://www.uscis.gov/iframe/ilink/docView/AFM/HTML/AFM/0-0-0-1/0-0-0-13593/0-0-... Case 2:16-cv-01932-DMG-AS Document 1 Filed 03/21/16 Page 29 of 45 Page ID #:29
  30. 30. All H-2A petitioners are required to attest in the H Classification Supplement submitted with the Form I-129 whether: (A) The petitioner has used a staffing, recruiting, or placement service or agent to locate the H-2A workers included in the petition. If so, the name & address of the service should be provided; (B) The beneficiaries have paid any form of compensation as a condition of the employment (or have made an agreement to pay such compensation at a later date), not including the lower of the fair market value or actual reasonable costs of transportation to the United States and government-specified fees required for travel to the United States (provided the passing of such costs by the petitioner/employer to the beneficiary is not prohibited by law) for which the worker may be responsible, and answer the fo llowing: (i) If the beneficiary has paid any form of compensation, has the beneficiary been reimbursed? If yes, evidence of the reimbursement must be submitted. (ii) If the beneficiary has made an agreement to pay such compensation at a later date, has this agreement been terminated? If yes, evidence of the termination must be submitted. AND (C) The petitioner has ever had an H-2A petition denied or revoked because an employee paid a job placement fee or other compensation. If so, the information about when it was and the receipt number must be provided. If the worker(s) was/were reimbursed for such fees or compensation, evidence of reimbursement must be submitted. If the worker(s) was/were not reimbursed because of the failure to locate the beneficiary, evidence of the efforts to locate the beneficiary must be submitted. Adjudicating officers will verify that the petitioner has signed the attestation included on the H Classification Supplement and will review the petitioner’s answers to ensure that they are consistent with the petitioner’s type of business. Page 6 of 1631.4 Agricultural Workers (H-2A). | USCIS 3/18/2016https://www.uscis.gov/iframe/ilink/docView/AFM/HTML/AFM/0-0-0-1/0-0-0-13593/0-0-... Case 2:16-cv-01932-DMG-AS Document 1 Filed 03/21/16 Page 30 of 45 Page ID #:30
  31. 31. If the alien has paid prohibited fees, the petition will not be denied or revoked if the petitioner demonstrates that: prior to the filing of the petition, the alien beneficiary has been reimbursed for the prohibited fees paid; where the prohibited fees have not yet been paid, that the agreement to pay has been terminated; or where, after the petition is filed, the petitioner learns that the prohibition on collecting or agreeing to collect a fee has been violated by a recruiter or agent, the petitioner notifies USCIS about the prohibited payments, or agreement to make such payments, within 2 work days of finding out about such payments or agreements. See 8 CFR 214.2(h)(5)(xi)(A) . Instructions explaining how a petitioner should make a fee-related notification to USCIS were published in a notice in the Federal Register on December 18, 2008. See 73 FR 77049 . If the H-2A petition is denied or revoked on these grounds, then, as a condition of approval of future H-2A petitions filed within one year of the denial or revocation, the petitioner must demonstrate that the beneficiary has been reimbursed or that the beneficiary cannot be located despite the petitioner’s reasonable efforts. See 8 CFR 214.2(h)(5)(xi)(C) . (g) Multiple Beneficiaries . More than one beneficiary may be included in an H-2A petition as long as the total number of beneficiaries does not exceed the number of positions certified by the DOL on the relating temporary labor certification and the beneficiaries will be performing the same service, or receiving the same training, for the same period of time, and in the same location. See 8 CFR 214.2(h)(5)(i)(B) . (h) Beneficiary Requirements. (1) Petitions filed on behalf of beneficiaries currently in the United States requesting a change of status or extension of stay in H-2A status must identify each beneficiary and provide evidence Page 7 of 1631.4 Agricultural Workers (H-2A). | USCIS 3/18/2016https://www.uscis.gov/iframe/ilink/docView/AFM/HTML/AFM/0-0-0-1/0-0-0-13593/0-0-... Case 2:16-cv-01932-DMG-AS Document 1 Filed 03/21/16 Page 31 of 45 Page ID #:31
  32. 32. to show that each beneficiary meets the minimum employment and job training requirements listed on the temporary labor certification (if applicable). (2) Petitions filed on behalf of beneficiaries who are outside the United States requesting consular notification are not required to identify the beneficiaries or to provide evidence of each beneficiary’s qualifications and/or education with the petition because that evidence may be submitted to the consulate at the time of a visa application or to the CBP at a port of entry or pre- flight inspection location upon admission. (3) Beneficiaries from countries not listed as eligible for H-2A classification. The H Classification Supplement to the Form I-129 , revised 01-22-2009 (p. 8 – 12 of the form) now requires a petitioner who chooses to file an H-2A petition on behalf of H-2A workers who are not from a country that has been designated as an H-2A eligible country to name those beneficiaries and provide the following information about such beneficiaries: Full Name; Date of birth; Country of birth; and Country of citizenship. This provision applies both to beneficiaries who are currently within the United States who are seeking an extension of H-2A stay or change of status to H-2A, as well as to beneficiaries who are outside of the country. A petition filed on behalf of H-2A workers who are not from a country that has been designated as an H-2A eligible country may be approved only if DHS determines, in its sole and unreviewable discretion, that it is in the U.S. interest for that alien to be a beneficiary of such petition. See 8 CFR 214.2(h)(5)(i)(F) . In order to make this discretionary determination of U.S. interest, USCIS may take into account the following four factors, including, but not limited to : Page 8 of 1631.4 Agricultural Workers (H-2A). | USCIS 3/18/2016https://www.uscis.gov/iframe/ilink/docView/AFM/HTML/AFM/0-0-0-1/0-0-0-13593/0-0-... Case 2:16-cv-01932-DMG-AS Document 1 Filed 03/21/16 Page 32 of 45 Page ID #:32
  33. 33. Factors: Evidence that a worker with the required skills is not available among U.S. workers or from among foreign workers from a country on the list of eligible countries; Evidence that the beneficiary has been admitted to the United States previously in H-2A status and complied with the terms of his/her status. Any potential for abuse, fraud, or other harm to the integrity of the H-2A program through the potential admission of these worker(s) that a petitioner plans to hire; and Other factors that would serve the U.S. interest, if any. Each request for a U.S. interest exception is fact-dependent, and therefore must be considered on a case-by-case basis. Although USCIS will consider any evidence submitted to address each factor, USCIS has determined that it is not necessary for a petitioner to satisfy each and every factor. Instead, a determination will be made based on the totality of circumstances. For factor no. 3 above, USCIS will take into consideration, among other things, whether the alien is from a country that cooperates with the repatriation of its nationals. For factor no. 4 above, circumstances that are given weight, but are not binding, include evidence substantiating the degree of harm that a particular U.S. employer, U.S. industry, and/or U.S. government entity might suffer without the services of H-2A workers from non-eligible countries. Petitions filed on behalf of beneficiaries from non-eligible countries that do not initially provide sufficient evidence to overcome the requirements of 8 CFR 214.2(h)(5)(i)(F)(1)(ii) will be issued a request for evidence allowing 30 days to respond to USCIS. See 8 CFR 103.2(b)(8)(ii) and (iv) . (4) The approval of a permanent labor certification, or the filing of a preference petition for an alien currently employed by the same petitioner, shall be a reason, by itself, to deny the alien's extension of stay. See 8 CFR 214.2(h)(16)(ii) . (i) Decision Procedures . (1) Approval . Page 9 of 1631.4 Agricultural Workers (H-2A). | USCIS 3/18/2016https://www.uscis.gov/iframe/ilink/docView/AFM/HTML/AFM/0-0-0-1/0-0-0-13593/0-0-... Case 2:16-cv-01932-DMG-AS Document 1 Filed 03/21/16 Page 33 of 45 Page ID #:33
  34. 34. If the documentary requirements have been met and the petition is approvable, endorse the action block. The approval period should coincide with the period requested by the petitioner, but should not exceed the validity dates indicated on the temporary labor certification from the Department of Labor. If the alien is present in the United States and requires a change of status, follow the procedures described in AFM Chapter 30.3 . If the alien is present in the United States and requires an extension of stay, follow the procedures described in AFM Chapter 30.2 . Notify the petitioner of the action taken using Form I-797 , Notice of Action. After approval, the file containing one copy of the petition and the supporting evidence should be forwarded to the Harrisonburg File Storage Facility (HBG). (2) Denial . Prepare a notice of denial and advise the petitioner of the right of appeal to the Administrative Appeals Office (AAO). Retain the file, in accordance with local procedures, until the appeal period expires or an appeal is received. Note: While the denial of a petition filed on behalf of a national of a country not listed on the H-2A Eligible Countries List for failure to establish eligibility for the U.S. interest exception in 8 CFR 214.2(h)(5)(i)(F) may be appealed to the AAO, there is no judicial appeal available to challenge such a discretionary denial, as such decisions, by regulation, are, as noted above, made in the Secretary’s sole and unreviewable discretion. Id. (3) Partial Approvals . A partial approval occurs with petitions for multiple beneficiaries when only some of the beneficiaries included on the petition are found to be approvable and some must be denied. For example, a partial approval may result in cases where a petition is filed for a combination of beneficiaries from H-2A eligible and non-eligible countries and the petitioner is unable to provide Page 10 of 1631.4 Agricultural Workers (H-2A). | USCIS 3/18/2016https://www.uscis.gov/iframe/ilink/docView/AFM/HTML/AFM/0-0-0-1/0-0-0-13593/0-0-... Case 2:16-cv-01932-DMG-AS Document 1 Filed 03/21/16 Page 34 of 45 Page ID #:34
  35. 35. sufficient evidence in response to a USCIS request for evidence that the beneficiaries from non- eligible countries meet the U.S. interest requirement of 8 CFR 214.2(h)(5)(i)(F)(1)(ii) . Since USCIS systems are not capable of counting two actions for one receipt, the action on a partial approval is counted as an approval for reporting purposes. Generally, a petitioner may appeal the decision to deny classification to one or more of the beneficiaries or file a new petition in their behalf. (j) Transmittal of Petitions . (1) Visa Applicants . If the beneficiary requires a visa and requests consular notification, the duplicate of the approved petition (if submitted), with the supporting documents, shall be sent to the Department of State’s Kentucky Consular Center (KCC). (2) Visa-exempt Applicants . If the beneficiary does not require a visa and requests notification to the port of entry or pre- flight inspection facility, forward the duplicate petition (if submitted) with supporting documents to the appropriate port of entry or pre-flight inspection facility. (k) Special Handling . (1) Sheepherders . Until the most recent H-2A final rule went into effect on January 17, 2009, USCIS refrained from applying the three-year maximum period of stay for H-2A sheepherders. See 73 FR 76891 However, effective January 17, 2009, sheepherders are subject to the same three-year maximum period of stay and departure requirements applicable to other H-2A workers. This change in the handling of sheepherders is mandated by the statutory requirement that H-2A employment be of a temporary nature . (2) Canadian Custom Harvest or Combine Operators . Page 11 of 1631.4 Agricultural Workers (H-2A). | USCIS 3/18/2016https://www.uscis.gov/iframe/ilink/docView/AFM/HTML/AFM/0-0-0-1/0-0-0-13593/0-0-... Case 2:16-cv-01932-DMG-AS Document 1 Filed 03/21/16 Page 35 of 45 Page ID #:35
  36. 36. Annually, a group of Canadian custom harvest and combine workers come to the Midwestern United States to assist U.S. farmers with harvesting wheat, corn, and other crops. Because the growing season for these crops varies depending on their specific geographical location, a definitive itinerary of services and locations is generally not provided; however, the operators typically start working in the South and work their way through a number of states north over the course of the harvesting season. Although petitioners filing for Canadian harvest or combine workers may not have a U.S. address, USCIS has traditionally accepted petitions filed by Canadian employers requesting these types of workers. Such operators typically are coming into the United States to provide services for U.S. employers, who have contracted with a member of the Association of Canadian Harvesters. (3) Certain Caribbean Residents Seeking Admission to the United States as H-2A Agricultural Workers . A visa is currently not required for H-2A workers who are British, French, or Netherlands nationals, or nationals of Barbados, Grenada, Jamaica, or Trinidad and Tobago, who have their residence in British, French, or Netherlands territory located in the adjacent islands of the Caribbean area, or in Barbados, Grenada, Jamaica, or Trinidad and Tobago. See 8 CFR 212.1(b) (1) . (l) Adjudicative Issues . (1) Substitution of Beneficiaries . Beneficiaries may be substituted for previously approved H-2A workers in the following situations, as long as the total number of beneficiaries will not exceed the number of workers authorized in the temporary labor certification: (A) Before admission . Substitutions of beneficiaries who have not yet been admitted to the United States are Page 12 of 1631.4 Agricultural Workers (H-2A). | USCIS 3/18/2016https://www.uscis.gov/iframe/ilink/docView/AFM/HTML/AFM/0-0-0-1/0-0-0-13593/0-0-... Case 2:16-cv-01932-DMG-AS Document 1 Filed 03/21/16 Page 36 of 45 Page ID #:36
  37. 37. processed directly with the consulate or, if the alien is visa exempt, at the port of entry or pre-flight inspection location. (B) Stateside substitution : An H-2A petition may be filed to replace H-2A workers already admitted to the United States: Whose employment was terminated earlier than the end date stated on the original H-2A petition and before the completion of work; Who failed to report to work within five work days of the employment start date (The worker has never worked at the work-site and it has been 5 days since his employment was scheduled to begin); or Who absconded from the work-site. An H-2A worker has absconded if he or she has not reported for work for a period of 5 consecutive workdays without the consent of the employer. (The worker has been working at the work-site, but abandoned his employment for a period of 5 consecutive workdays without the consent of the employer). To request a stateside substitution, the petitioner must file an amended petition at the Service Center where the original petition was filed. This amended petition requesting substitution (s) must be filed with: A filing fee; A copy of the temporary labor certification; A copy of the approval notice covering the workers for which replacements are sought; A statement giving each terminated worker’s name, date and country of birth, Page 13 of 1631.4 Agricultural Workers (H-2A). | USCIS 3/18/2016https://www.uscis.gov/iframe/ilink/docView/AFM/HTML/AFM/0-0-0-1/0-0-0-13593/0-0-... Case 2:16-cv-01932-DMG-AS Document 1 Filed 03/21/16 Page 37 of 45 Page ID #:37
  38. 38. termination date, the reason for termination, and the date that USCIS was notified that the alien was terminated or absconded, if applicable; and Other evidence as required under 8 CFR 214.2(h)(5)(i)(D) . A petition requesting substitution(s) may not be approved where the requirements of paragraph 8 CFR 214.2(h)(5)(vi) of this section (regarding consent, liabilities and non- compliance) have not been met. Additionally, a petition requesting substitution(s) does not constitute the notification requirements of paragraph 8 CFR 214.2(h)(5)(vi)(B)(1) . (2) Limitation on Period of Stay . Generally, H-2A workers are authorized a maximum uninterrupted stay of three (3) years in H-2A classification. An individual who has held H-2A status for a total of 3 years may not again be granted H-2A status until such time as he or she remains outside the United States for an uninterrupted period of 3 months. See 8 CFR 214.2(h)(5)(viii)(C) . Absences from the United States that are less than 3 months can interrupt the accrual of time spent as an H-2A nonimmigrant against the 3-year limit: If the accumulated stay is 18 months or less, an absence is interruptive if it lasts at least 45 days; or If the accumulated stay is greater than 18 months, an absence is interruptive if it lasts for at least 2 months. Page 14 of 1631.4 Agricultural Workers (H-2A). | USCIS 3/18/2016https://www.uscis.gov/iframe/ilink/docView/AFM/HTML/AFM/0-0-0-1/0-0-0-13593/0-0-... Case 2:16-cv-01932-DMG-AS Document 1 Filed 03/21/16 Page 38 of 45 Page ID #:38
  39. 39. As of January 18, 2009, sheepherders are no longer exempt from this 3-year limitation of stay. See 73 FR 76906 . Note: H-2A aliens do not fall under the exception listed in 8 CFR 214.2(h)(13)(v) . This regulation refers only to H-1B, H-2B, and H-3 classifications, giving them an exception to the limitation on the maximum period of stay for aliens who commute part-time to the United States. or who do not reside continually in the United States and whose employment is seasonal, intermittent, or for an aggregate of 6 months or less per year. (3) Extension with a New Employer . In most cases, an H-2A worker who changes employer cannot begin working for the new employer until USCIS approves the petition requesting a change of employer. However, in cases where a new employer that is participating and in good standing with E-Verify files a petition for a change of employer on behalf of an H-2A alien requesting an extension of stay, the H-2A alien may work for the new employer, as soon as USCIS receives the petition. While the petition is pending, the H-2A alien’s employment authorization is extended up to 120 calendar days. If USCIS does not approve the new petition within 120 days or denies it before 120-day period expires, USCIS will automatically terminate the H-2A alien’s employment authorization in 15 calendar days. In those cases, E-Verify will not notify the new employer that USCIS has terminated employment authorization. At its discretion, USCIS may periodically audit any new employer’s participation in E-Verify, as well as the status of the alien’s employment on a post-adjudication basis. Violators will be subject to petition and/or status revocation. Page 15 of 1631.4 Agricultural Workers (H-2A). | USCIS 3/18/2016https://www.uscis.gov/iframe/ilink/docView/AFM/HTML/AFM/0-0-0-1/0-0-0-13593/0-0-... Case 2:16-cv-01932-DMG-AS Document 1 Filed 03/21/16 Page 39 of 45 Page ID #:39
  40. 40. afm Adjudicator's Field Manual - Redacted Public Version Chapter 31 Petitions for Temporary Workers (H Classifications). 31.4 Agricultural Workers (H-2A). Previous Document|  Next Document Page 16 of 1631.4 Agricultural Workers (H-2A). | USCIS 3/18/2016https://www.uscis.gov/iframe/ilink/docView/AFM/HTML/AFM/0-0-0-1/0-0-0-13593/0-0-... Case 2:16-cv-01932-DMG-AS Document 1 Filed 03/21/16 Page 40 of 45 Page ID #:40
  41. 41. EXHIBIT 2 Case 2:16-cv-01932-DMG-AS Document 1 Filed 03/21/16 Page 41 of 45 Page ID #:41
  42. 42. Case 2:16-cv-01932-DMG-AS Document 1 Filed 03/21/16 Page 42 of 45 Page ID #:42
  43. 43. EXHIBIT 3 Case 2:16-cv-01932-DMG-AS Document 1 Filed 03/21/16 Page 43 of 45 Page ID #:43
  44. 44. 3/14/2016 U.S. Citizenship and Immigration Services ­ USCIS Processing Time Information https://egov.uscis.gov/cris/processingTimesDisplay.do;jsessionid=abc3cMOZRd0ax8yaIc2nv 1/2 FORMS NEWS RESOURCES LAWS OUTREACH ABOUT US Home | Español | Site Map Search   USCIS Processing Time Information Print This Page     Back USCIS Processing Time Information for the  California Service Center Instructions for Using the Chart The chart will show most of the types of forms processed at the field office or service center. You can select the form type that applies to your case from the drop­down menu. If the field office or service center is meeting its goal for processing a form, you will find the timeframe listed in months. For example, if the office is processing Form N­400 naturalization applications in five months or less, then the chart will say "5 months." However, if the office is experiencing a processing delay, you will find the filing date of the last case that the office completed before updating the chart. Important Information About Form I­765, Application for Employment Authorization You can now submit inquiries about the status of your Form I­765 after your case has been pending more than 75 days. Please note that for Form I­765 category (c)(8), based on a pending asylum application, the processing timeframes listed only apply to an initial filing. Please note that the 90­day period for adjudicating Form I­765 category (c)(33) filed together with Form I­821D, requesting deferred action for childhood arrivals, does not begin until we have made a decision on your request for deferred action.   Field Office Processing Dates for California Service Center as of: January 31, 2016 Form Title Classification or Basis for Filing: Processing Timeframe: I­102 Application for Replacement/Initial Nonimmigrant Arrival/Departure Record Initial issuance or replacement of a Form I­94 2.5 Months I­129 Petition for A Nonimmigrant Worker Blanket L 2 Months I­129 Petition for A Nonimmigrant Worker E ­ Treaty traders and investors 2 Months I­129 Petition for A Nonimmigrant Worker H­1B ­ Specialty occupation ­ Visa to be issued abroad 2 Months I­129 Petition for A Nonimmigrant Worker H­1B ­ Specialty occupation ­ Change of status in the U.S. 2 Months I­129 Petition for A Nonimmigrant Worker H­1B ­ Specialty occupation ­ Extension of stay in the U.S. August 28, 2015 I­129 Petition for A Nonimmigrant Worker H­2A ­ Temporary workers 1 Months I­129 Petition for A Nonimmigrant Worker H­2B ­ Other temporary workers 1 Months I­129 Petition for A Nonimmigrant Worker H­3 ­ Temporary trainees 2 Months I­129 Petition for A Nonimmigrant Worker L ­ Intracompany transfers 1 Months I­129 Petition for A Nonimmigrant Worker O ­ Extraordinary ability 2 Weeks I­129 Petition for A Nonimmigrant Worker P ­ Athletes, artists, and entertainers 2 Weeks I­129 Petition for A Nonimmigrant Worker Q ­ Cultural exchange visitors and exchange visitors participating in the Irish Peace process 2 Months I­129 Petition for A Nonimmigrant Worker R ­ Religious occupation August 18, 2015 I­129 Petition for A Nonimmigrant Worker TN ­ North American Free Trade Agreement (NAFTA) professional 2 Months I­129F Petition for Alien Fiance(e) K­1/K­2 ­ Not yet married ­ fiance and/or dependent child 5 Months I­129F Petition for Alien Fiance(e) K­3/K­4 ­ Already married ­ spouse and/or dependent child 5 Months I­130 Petition for Alien Relative Permanent resident filling for a spouse or child under 21 5 Months I­130 Petition for Alien Relative U.S. citizen filing for a spouse, parent, or child under 21 5 Months I­130 Petition for Alien Relative U.S. citizen filing for an unmarried son or daughter over 21 5 Months I­130 Petition for Alien Relative Permanent resident filling for an unmarried son or daughter over 21 May 12, 2015 I­130 Petition for Alien Relative U.S. citizen filing for a married son or daughter over 21 April 25, 2012 I­130 Petition for Alien Relative U.S. citizen filing for a brother or sister May 17, 2011 I­131 Application for Travel Document All other applicants for advance parole 3 Months I­360 Petition for Amerasian, Widow(er), or Special Immigrant All other special immigrants August 16, 2015 I­360 Petition for Amerasian, Widow(er), or Special Immigrant Religious workers August 16, 2015 AILA Doc. No. 16031430. (Posted 3/14/16) Case 2:16-cv-01932-DMG-AS Document 1 Filed 03/21/16 Page 44 of 45 Page ID #:44
  45. 45. 3/14/2016 U.S. Citizenship and Immigration Services ­ USCIS Processing Time Information https://egov.uscis.gov/cris/processingTimesDisplay.do;jsessionid=abc3cMOZRd0ax8yaIc2nv 2/2 Contact Us Site Map (Index) Careers at USCIS Adobe PDF Reader Windows Media Player White House.gov US Department of State USA.gov U.S. Department of Homeland Security US Customs & Border Patrol US Immigration & Customs Enforcement Freedom of Information Act (FOIA) No FEAR Act Website Policies Privacy Policy Accessibility I­485 Application to Register Permanent Residence or to Adjust Status Employment­based adjustment applications September 16, 2015 I­539 Application to Extend/Change Nonimmigrant Status Change status to the F or M academic or vocational student categories November 2, 2015 I­539 Application to Extend/Change Nonimmigrant Status Change of status to H or L dependents 2.5 Months I­539 Application to Extend/Change Nonimmigrant Status Change Status to the J exchange visitor category August 12, 2015 I­539 Application to Extend/Change Nonimmigrant Status All other change of status applications 2.5 Months I­539 Application to Extend/Change Nonimmigrant Status Extension of Stay for F or M academic or vocational students 2.5 Months I­539 Application to Extend/Change Nonimmigrant Status Extension of stay for H and L dependents September 16, 2015 I­539 Application to Extend/Change Nonimmigrant Status Extension of Stay for J exchange visitors 2.5 Months I­539 Application to Extend/Change Nonimmigrant Status All other extension applications October 22, 2015 I­601 Application for Waiver of Grounds of Inadmissibility Waiver of Grounds of Inadmissibility 4 Months I­612 Application for Waiver of the Foreign Residence Requirement Application for a waiver of the 2­year foreign residence requirement based on exceptional hardship or persecution September 16, 2015 I­751 Petition to Remove the Conditions on Residence Removal of lawful permanent resident conditions (spouses of U.S. citizens and lawful permanent residents 6 Months I­765 Application for Employment Authorization Based on a request by a qualified F­1 academic student. [(c)(3)] 3 Months I­765 Application for Employment Authorization Based on a pending asylum application [(c)(8)] 3 Weeks I­765 Application for Employment Authorization Based on a pending I­485 adjustment application [(c)(9)] 3 Months I­765 Application for Employment Authorization Based on TPS for Honduras/Nicaragua [(c)(19), (a)(12)] October 16, 2015 I­765 Application for Employment Authorization Based on an approved, concurrently filed, I­821D, Consideration of Deferred Action for Childhood Arrivals (c)(33). 90 Days I­765 Application for Employment Authorization All other applications for employment authorization 3 Months I­821 Application for Temporary Protected Status Honduras and Nicaragua extension October 19, 2015 I­821 Application for Temporary Protected Status Honduras and Nicaragua initial or late filing October 16, 2015 I­821D Consideration of Deferred Action for Childhood Arrivals Request for Deferred Action 6 Months I­821D Consideration of Deferred Action for Childhood Arrivals Renewal October 16, 2015 I­824 Application for Action on an Approved Application or Petition To request further action on an approved application or petition 3 Months   Print This Page     Back Last Updated: March 14, 2016 AILA Doc. No. 16031430. (Posted 3/14/16) Case 2:16-cv-01932-DMG-AS Document 1 Filed 03/21/16 Page 45 of 45 Page ID #:45

×