How Bad Must an H-2B Application Be To Be Denied?

By David North on September 5, 2019

How bad does an employer's application for H-2B temporary foreign workers have to be for it to be denied?

We got some clues the other day when a sports bar in Bethlehem, Pa., lost its bid for four temporary alien workers — they were to pitch in during the bar's longish busy season, while a nearby college was in session. An administrative judge within the U.S. Department of Labor decided — a welcome development — that the bar had not made an adequate case that they needed the foreign workers.

Background. Statistically, the various cabinet agencies in the foreign worker field usually say yes to employers by five- or 10-to-one margins; denials are the exception, not the rule.

Generally, the forces for approval have all the big guns — the employer, his or her lawyers, and tradition. At the level of the first decision-maker, a civil servant, there is no force like a defense attorney, arguing the case against approval. As a result, the applications are usually approved.

If, however, an application is denied, then the employer can go into an administrative court to appeal the case. My sense is that American workers cannot, at this level, appeal a decision granting the employer the alien workers he wants, though this can be done (and is done rarely) in federal courts.

At this point in the process, the civil servant's position is supported by a departmental attorney, as the employer is backed by his private lawyer. The judge in this case, Lee J. Romero, Jr., is a member of a panel of in-house judges, the Board of Alien Labor Certification Appeals (BALCA).

Meanwhile, let's create a bit of a hierarchy regarding the quality of cases in the H-2B system (which is for seasonal non-agricultural jobs). Most cases are approved by the civil service and are in what we will call Class A. This covers about 80 to 90 percent of the applications. Then are three classes of denied cases:

  • Class B: The case is appealed successfully;
  • Class C: The case is appealed, but loses at the BALCA level, perhaps to be appealed further to the federal courts;
  • Class D: There is no appeal; apparently the employer and/or the attorney decided that the government is right.

The Bethlehem bar falls into our Class C; it is not in the worst class of cases, but the application has been rejected by the first line adjudicator (the certifying officer or CO) and that denial has been upheld by an administrative judge; in other words there are two strikes against the employer.

The Bethlehem Bar. The employer in this case has an unfortunate name, the Copperhead Grille; it is located within a half-mile of DeSales University, whose website says it has 2,345 students. The owner of the bar, which routinely has some 13-18 workers, applied for the four H-2B workers to be employed from October 1, 2019, through June 2020. This, it argued, was its peak season as the university was in session for most of this period. It also argued that it was planning a patio, which would seat more customers.

As its proof of greater sales during the school year, Copperhead Grille presented an interesting bit of data, the number of monthly transactions that were paid for by a credit card associated with the university, the "Paws Pass". These sales, however, for the unknown year cited, ranged from zero in June to $4,914 in September, never, as Judge Romero noted, breaking $5,000 a month. Data on "major reservations" and catering banquet contracts were also unimpressive, so the judge ruled that: "the Employer failed to demonstrate its temporary peak-load need for four 'Food Preparation Workers.'"

In addition, here are a couple of variables, which would argue against the use of H-2A workers in this case that the judge did not mention:

  1. When the peak labor demand relates to the blueberry harvest, for example, there is no accompanying increase in the human population at harvest time; in the Copperhead case, the owner's argument was that the presence of students during the school year increased his business. The reverse of the argument is that this is exactly the time of year when the nearby potential labor force (including students at DeSales) increases by that school's enrollment of 2,345; surely the bar could find some part-time workers from that group of 2,000-plus.
  2. The poverty level in Bethlehem, at 17 percent, is well above the national average of 12.7 percent, indicating a loose labor market.

Virtually all of the DeSales student body would, by the way, be legally able to work in a bar because they are more than 18 years of age. While you cannot drink in Pennsylvania until age 21, you can work in a bar at age 18.

The Copperhead Grille case was in our Class C of denied cases, and may or may not be typical of that class; but with that as a possible model, think of the quality it implies for the Class D cases!

For an article on the matter, behind a partial paywall at Law360, see here, and for the full text of Judge Romero's decision, see here.