Guam Delegate: Lawsuit May Be Only Way To Resolve Foreign Labor Challenges

Businesses have sued Federal Government for 'unlawfully changing immigration policies'

By Steve Limtiaco

HAGÅTÑA, Guam (Pacific Daily News, Oct. 6, 2016) – Guam Del. Madeleine Bordallo said it’s unfortunate Guam businesses had to sue the federal government to resolve problems with access to foreign labor, but she said it may be necessary to solve the current impasse with federal immigration authorities.

A dozen Guam companies this week filed a lawsuit in the District Court of Guam, accusing the U.S. Citizenship and Immigration Service of unlawfully changing immigration policies.

Their lawsuit states the federal agency for decades had approved nearly all  Guam requests for foreign worker H-2B visas, but since last year has instead denied nearly all requests for new visas and visa extensions.

The inability to keep or bring in large numbers of specialized foreign workers threatens their ability to complete projects, including projects for the military, the lawsuit states. Costs associated with project delays also could force them out of business, they stated.

At the heart of the dispute is the definition of “temporary” worker under the visa regulations. The USCIS since last year has been applying a stricter standard to determine whether the work requested is temporary.

For example, in denying a request by 5M Construction Corporation to extend the visas for dozens of foreign carpenters, the USCIS stated, “The regulations clearly require that an employer that seeks to employ H-2B workers must have a temporary need for a limited period of time and that will end in the definable future.”

The federal agency concluded that the foreign carpenters employed by 5M were not temporary, and there was no clear end to their work on Guam. They had been working on Guam since about 2013, the federal agency stated, and 5M wanted to keep them on Guam until at least Dec. 31, 2019.

“Your need to have the carpenters for this length of time indicates that the temporary carpenter positions have become part of your regular operations,” the federal agency stated.

Bordallo several months ago included a provision in the 2017 defense budget that she said is intended to resolve the issue — making it clear that foreign hires do not have to meet the legal requirement of being “temporary” in order to get visas to work on Guam or in the Commonwealth of the Northern Mariana Islands. Her amendment applies only to those who work on military-funded projects or who work in health care.

Bordallo is running for re-election.

Bordallo has said it could take months for the budget bill to become law — next spring at the earliest — so she wrote a letter to U.S. Citizenship and Immigration Services Director Leon Rodriguez on Sept. 6, asking him to defer action on H-2B cases on Guam until the law is changed.

Bordallo issued a written statement Wednesday, stating she continues to work on the visa question as well as regional solutions to Guam’s labor issues.

"Thousands of temporary nurses, construction workers, and others have had to return to their home countries because their visa renewal applications have been denied and new visas have not been issued. I’m very concerned that Guam’s organic workforce cannot meet our current labor demands, especially with the specialties that many of these H-2B workers provide,” she stated.

Pacific Daily News
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