Seasonal industries often find it difficult to find seasonal workers due to the short duration of the jobs and the tasks involved.  This is where the H-2B visa category can help.  Common industries that utilize the H2B program to supplement their workforce include, but are not limited to: nurseries, golf courses, carnivals and fairs, lawn and landscaping, resorts and hotels, tourist attractions, theme parks, and snow removal.  But the H-2B visa program is not limited to any particular industry.  However, the H-2B visa cannot be used for agricultural work.

H2b visas are also not limited to any particular country.  Workers may come from Mexico, South Africa, China, Russia or any other country where they are located.  In order to simplify the process and keep costs down, it is best to get all of the workers from the same location.  If all of the workers are coming from the same place to do the same job, they may all be included on one petition.

Work Visa Application

Temporary Labor

The first criteria is that the need for the workers and the job must be seasonal; the employer cannot use the H-2B visa to fill an ongoing need.  Almost all seasonal jobs, by definition, meet this criteria because the services or labor are traditionally tied to a season of the year by an event or pattern and is of a recurring nature.

Department of Labor

Before filing a petition with the immigration service – U.S. Citizenship & Immigration Services (USCIS), the employer must first get labor certification from the U.S. Department of Labor (DOL).  This generally requires that the employer prove the seasonal nature of the job and that it cannot find any qualified and willing U.S. workers.

The procedure for getting certification changes almost yearly and therefore, it is recommended that you seek the assistance of an experienced H-2B immigration lawyer to advise on the current practices.

While it may seem obvious, it is nevertheless worth noting that the employer must be a U.S. company.  There are instances in which foreign companies operate in the United States and it must be the U.S. entity that files the petition.

U.S. Citizenship & Immigration Services – USCIS

After DOL grants certification, the employer can petition USCIS for the H-2B visas.  The proof required at this stage is somewhat duplicative with the process undertaken with DOL, but USCIS nevertheless must grant the petition before the visas can be issued.

U.S. Consulate / Embassy

If USCIS approves the H-2B petition, it will forward the case to the U.S. consulate where the temporary workers are located.  The workers then go to the consulate to apply individually for their visas.  It is helpful at this stage to use an agency in the foreign country familiar with the H-2B procedures at the consulate to assist in gathering the workers and applying for the visas.

How long can the workers stay in the United States?

Writ of Mandamus in Minnesota

by Kent B. Gravelle, Esq.

 According to Black’s Law Dictionary (8th Ed. 2004), a writ of mandamus is a “writ issued by a superior court to compel a lower court or a government officer to perform a mandatory or purely ministerial duties correctly.”  In immigration law, writs of mandamus are most often utilized when U.S. Citizenship and Immigration Services (USCIS) allows an I-485 (Application to Register Permanent Residence or Adjust Status), N-400 (Naturalization Application), or I-589 (Application for Asylum and Withholding of Removal) to languish for years while a criminal and national security background check is conducted.

The immigration bar in Minnesota has been quite active (and successful) in writ of mandamus litigation against the federal government.  Most recently, a published opinion was released in Burni v. Frazier, 545 F.Supp.2d 894, 897 (D.Minn.2008) in which the spouse of a U.S. citizen “…filed an I-485 application for adjustment of status to lawful permanent residency on or about December 10, 2004.”  The applicant’s security checks were not completed, thus placing his final approval in limbo.  Id.  The applicant exhausted his administrative remedies by “…making written inquiries to the Department of Homeland Security, making Infopass appointments at the local district office to inquire about the status of his case, and writing to various government officials.”  Id.

Finally, after more than three years of delay, the applicant brought a suit requesting the issuance of a writ of mandamus which the government attempted to dismiss due to lack of subject matter jurisdiction.  Id.  The United States District Court for the District of Minnesota denied the government’s motion to dismiss, holding that it had jurisdiction because the failure to make a decision on the I-485 application was not a discretionary action within the meaning of 8 U.S.C. §1252(b)(2)(B)(ii) and that 28 U.S.C. §1361 (the Mandamus Act) and 5 U.S.C. §§551 et seq. (Administrative Procedures Act or APA) afforded the applicant relief.   Id. at 902, 903.  The Court explained that 8 C.F.R. §245 requires that an I-485 applicant “shall be notified of the decision” regarding the application and thus “USCIS has a non-discretionary duty to adjudicate an application…and that the APA requires the applications to be adjudicated in a reasonable time.”  Id. at 904.

A year earlier, the Court issued three decisions in three separate mandamus cases in October of 2007:  Sun v. Chertoff, 2007 WL 2907993 (D.Minn.);  Sawad v. Frazier, 2007 WL 2973833 (D.Minn.);  and Asrani v. Chertoff, 2007 WL 3521366 (D.Minn.).  All three were favorable to the immigrant-plaintiff.

In Sun, a Chinese immigrant filed an I-485 with the Nebraska Service Center of the U.S. Citizenship and Immigration Service (USCIS) on August 19, 2004.  Id. at *2.  On September 2, 2004, the FBI received Sun’s name from USCIS for a name check.  Id.  In 2006, Sun sought the help of her congressman and senator to no avail and Sun received information pursuant to a Freedom of Information Act (FOIA) request which showed that the FBI had no records pertaining to her.  Id.

Sun filed her suit for a writ of mandamus against various DHS, USCIS, and FBI officials on March 13, 2007, about two and one-half years after her submission of the I-485.  Id.  The government brought a motion to dismiss which the Court denied, holding that “…the APA requires that the applications be processed in a reasonable time.”  Id. at *8, citing 5 U.S.C. §555(b).  The Court also ordered that the government “provide to the court and plaintiff within 60 days evidence specific to plaintiff’s application showing that the delay in processing her name check and adjudicating her application is reasonable.”  Id. at *12.

In Sawad v. Frazier, 2007 WL 2973833 (D.Minn.), a husband and wife filed their I-485 applications on March 1st and December 27th of 2004.  Id. at *2.  The FBI acknowledged receipt of USCIS’s name check requests shortly after each I-485 was filed, but as of September 14, 2007, the date of the court hearing, plaintiffs’ name checks had not been completed.  Id.  Thus, one of the applications languished for more than three years and the other for almost three years.

On March 30, 2007, plaintiffs brought suit against the USCIS and FBI officials, requesting a writ of mandamus.  Id. at *3.  The government brought a motion to dismiss which the Court denied, holding that “plaintiffs have a clear, indisputable and nondiscretionary right to have USCIS adjudicate their applications in a reasonable time.”  Id. at *10.

In Asrani v. Chertoff, 2007 WL 3521366 (D.Minn.), at *1, an immigrant filed an I-485 application on March, 18, 2005 and on April 7, 2005, USCIS initiated a mandatory FBI name check.  The Court noted that:

                        In the thirty months since Petitioner filed his application

                        for an adjustment of status, Petitioner’s mandatory FBI

                        name check has not been completed and USCIS has not

                        adjudicated his application.  As of May 29, 2007 the St.

                        Paul office of USCIS had 406 name check requests that

                        had been pending longer than Plaintiff’s request.

 Id. at *2.

The Asrani Court analyzed in detail whether it had subject matter jurisdiction under the Mandamus Act, 28 U.S.C. §1361 stating:

                        The Mandamus Act provides for subject matter

                        jurisdiction only in extraordinary circumstances and

                        when (1) the plaintiff has a clear and indisputable right

                        to the relief he seeks, (2) the defendant has a non-

                        discretionary duty to honor that right, and (3) the

                        plaintiff has a lack of an alternative, adequate remedy.

Id. at 3 (citing Castilla v Ridge, 445 F.3d 1057, 1060 (8th Cir. 2006). 

With regard to the first prong of the test, the Court held that the applicant “has a right to have the USCIS adjudicate his application within a reasonable time.”  Id. at *5.  The Court quoted language from 8 C.F.R. §245.2(a)(5)(i) which states, “‘the applicant shall be notified of the decision of the director and, if the application is denied, the reasons for the denial.’”  Id. at *4.  The Court explained that “This language makes it clear that USCIS has a duty to actually make a decision and the Plaintiff has a right to be notified of the decision.”  Id.

Regarding the second prong of the test regarding whether the government had a non-discretionary duty to make a decision regarding the I-485 application, the Court explained that the applicant only requested a decision, not a favorable decision, and thus the duty is not discretionary.  Id. at *5.  With regard to the third prong on whether the applicant has an alternative, adequate remedy, the Court found that waiting is not an alternative remedy.  Id. at *6.  Thus, the Court found that subject matter jurisdiction existed under the Mandamus Act and that the government’s motion to dismiss for lack of subject matter jurisdiction would be denied.  Id.

In December of 2006, a decision was issued by Judge Donovan Frank which appears to have laid the ground work for the subsequent immigration mandamus decisions discussed above.  The style of the case is Haidari v. Frazier, 2006 WL 3544922 (D.Minn.) and in it, three Palestinians filed I-485 applications with the Nebraska Service Center, all of which languished for four to six years while the FBI conducted name checks (Senator Mark Dayton’s office confirmed that one of the FBI name checks was completed on October 13, 2006 and forwarded to USCIS but as of December 1, 2006, USCIS had still not adjudicated that I-485 application).  Id. at *5.

The Haidari Court analyzed the three-pronged test as in the Asrani decision, above, and found that jurisdiction existed under the Mandamus Act.  Interestingly, with regard to the third, unreasonable delay, prong, the Court noted that USCIS waited between one and three years just to request a name check from the FBI.  Id. at *12.  The Court held that the delay was unreasonable and that the APA explicitly forecloses USCIS from exercising “unfettered discretion to relegate aliens to a state of ‘limbo’, leaving them to languish there indefinitely.”  Id.  The Court ordered USCIS to completed its adjudication of the I-485 applications within 30 days and promptly notify the Court and the Plaintiffs of its decisions.  Id. at *13.  The Court also retained “jurisdiction over the matter in the interim to ensure that the USCIS complies with this order.”  Id.

Finally, the only case from this jurisdiction that the Government may cite in its favor is Chaudry v. Chertoff, 2006 WL 2670051 (D.Minn).  In Chaudry, the applicant filed his I-485 on July 23, 2004.  Id. at *1.  USCIS interviewed the applicant on April 21, 2005 and told the applicant that the background check would be completed in four to six months.  Id. at *2.  Almost a year after the interview, the applicant filed an action seeking a writ of mandamus.  Id.  Employing the three-prong Mandamus Act test, the Chaudry Court found that the applicant had not established a clear and indisputable right to the relief he sought because “the background checks must be completed” and the applicant had not shown that there was no other adequate remedy because “his remedy is to wait for the USCIS to process the petition.”  Id. at *4.  With regard to the APA, the Court held that the applicant’s documentation and interview process was completed seventeen months ago and that “This length of time is not unreasonable, especially in light of the fact that the Complaint alleges no particular inauspicious motives or unscrupulous actions by Defendants.”  Id. at *5.  The Court dismissed the applicant’s lawsuit without prejudice, allowing the applicant to re-file should “the FBI and USCIS persist in delaying adjudication of Plaintiff’s I-485 petition.”  Id. at *6.

Fortunately, the applicant in Chaudry brought suit after “only” 17 months of delay, much less time than in the other cases above.  However, even if a future litigant brings a suit requesting mandamus relief after “only” 17 months of delay, it is certainly possible that the court will not find Chaudry to be controlling.  This is due to the fact that the only published decision on this subject from this jurisdiction, Burni v. Frazier, 545 F.Supp.2d 894 (D.Minn.2008), severely discounted the value of Chaudry in its opinion at footnote 8 when it stated:

                        This Court recognizes that in a fifth case out of this

                        District, Chaudry v. Chertoff, 2006 WL 2670051

                        (D.Minn. Sept. 18, 2006) (J. Magnuson) (the same

                        judge assigned to this matter), that the Court found

                        that the mandamus statute did not provide subject

                        matter jurisdiction, and that under the APA (which

                        was not pled), the delay (approximately 22 months

                        from application and 17 months from documentation

                        and interview) was not unreasonable as a matter of

                        law.  Id. at *2-3.  This Court notes that this was the

                        first case to be decided out of this District, plaintiff

                        was pro se, and Judge Magnuson did not have the

                        benefit of the extensive case law that has developed

                        on the subject since his decision.  In addition, the

                        Court notes that Judge Magnuson did not foreclose

                        plaintiff from returning to court in the future.  He

                        dismissed the case without prejudice “because

                        Plaintiff’s claims, if properly pled, may have merit

                        if the FBI and USCIS persist in delaying adjudication

                        of Plaintiff’s I-485 petition.”  Id. at *3.  Finally, the

                        Court notes that on February 4, 2008, the USCIS

                        issued “Revised National Security Adjudication and

                        Reporting Requirements,” which now require that if a

                        name check in conjunction with an I-485 application

                        has been pending more than 180 days and the application

                        is otherwise approvable, the application shall be approved

                        and the card issued.

Conclusion

            A federal law suit requesting a writ of mandamus may be an immigrant’s only hope when the years drag on without any resolution from the government.  Fortunately, Minnesota’s case law is favorable to such a remedy and thus it should be seriously considered by immigration attorneys and their clients once it appears that the government’s delay is unreasonable.

 Kent Gravelle is an attorney with Cundy & Martin, LLC – Immigration Lawyers in Minnesota.  www.cundyandmartin.com