Contractors disappointed with H-2B decision but sees silver lining

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James Martinez, president of the Guam Contractors Association advises contractors who have plans for outside the fence projects to apply now for the H-2B workers they need.
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The Guam Contractors Association (GCA) is disappointed with District Court Chief Judge Frances Tydingco-Gatewood’s decision not to hold the U.S. Citizenship and Immigration Services (USCIS) in contempt for failing to approve H-2B worker petitions.

But the GCA president and the attorney representing them say the case is not yet over.

In an order issued Wednesday, Judge Tydingco-Gatewood rejected a motion asking her to find USCIS in contempt for violating her January 2018 injunction against the agency over its failure to approve applications from Guam contractors to bring skilled foreign workers to Guam under the H-2B visa program.

Jeff Joseph, the Colorado-based attorney representing the Guam Contractors Association and others, sought an order of contempt against USCIS for what he argued was the agency’s “willful failure to comply” with the injunction issued by the judge ordering USCIS to stop its blanket denial of H-2B applications that, nearly two years ago, left the island with virtually no H-2B workers.

However, in a statement to the media, Joseph said that the decision holds some promise as the lawsuit enters its next phase.

He pointed out that Judge Tydingco-Gatewood concluded that USCIS conceded that it had not been properly determining whether each H-2B application meets the immigration service’s requirement that each foreign worker would go home after the temporary job is done.

James Martinez, president of the Guam Contractors Association, said: “They conceded that they have in the past rubber-stamped all these approvals and they were doing so thousands and thousands for decades without review. So we took it as that’s the normal process. Now, what we’re trying to say is that there was a change in the policy somewhere and then they started to deny all these applications.”

Currently, thanks to an exemption granted in the National Defense Authorization Act, island contractors have been able to bring in H-2B workers as long as their projects are endorsed by Joint Region Marianas as being related to the military buildup. There are roughly 1,500 H-2B workers on island now, said Martinez.

However, the availability of skilled foreign workers for non-military projects outside the fence remains a major problem. So the lawsuit continues.

“You know, we’re going to take this to the end and see where we go with it. And right now we’re seeing that we’ve won on all the motions, except for the most recent one which is the contempt. And the only reason why I say that is because there really wasn’t a contempt in the sense that there were no applications that were submitted and therefore none could be denied,” Martinez said.

Martinez’s continued advice to contractors who have plans for outside the fence projects is to apply for the H-2B workers they need.

“Try and apply and whether you get approved or not, at least we know where the federal government stands on projects or requests for foreign skilled works for projects outside of the military bases. Right now, nobody’s applied, so we don’t know what that answer is. If they apply and get approved then I say okay … so they followed the injunction … and then we can probably pull that contempt motion out,” Martinez said.

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