Kyla P Mora

Pacific Daily News

U.S. immigration officials used to approve 95 percent of requests by Guam companies to import foreign labor, but this year have rejected nearly all requests, according to the attorney representing a dozen companies adversely affected by the high denial rate of H-2B visas.

They filed a lawsuit Tuesday in the District Court of Guam, alleging the high rejection rate constitutes an unlawful change in U.S. Citizenship and Immigration Service policy.The lawsuit claims some employers might be forced out of business because they no longer have access to the foreign workers needed to complete military and private projects.

Attorney Jennifer Davis said, “the explanation from Immigration to date has been that there has been no change in policy.”

However, Davis said, the numbers show otherwise.

Governor wants regional migrant labor, only positive news coverage

“They have changed that policy without any explanation or opportunity to comment as to such a change of policy, and the plaintiffs in our case have all been on contracts or developed business models based on or relying on the prior policy of USCIS,” Davis said. “So we’re asking the court to declare that change unlawful without allowing us to comment and to also provide relief in the interim.”

The lawsuit names five defendants: U.S. Attorney General Loretta Lynch, Department of Homeland Security Secretary Jeh Johnson, USCIS Director Leon Rodriguez, Associate Director of Service Center Operations Donald Neufeld, and California Service Center Director Kathy Baran.

Companies listed as plaintiffs in the complaint include: the Guam Contractors Association; Ace Builders, LLC; BME& Son’s, Inc.; Guam Tropical Dive Station, Inc.; Guam XRay dba Guam Radiology Consultants; Johndel International, Inc. dba JMI-Edison; Inland Builders Corporation; Landscape Management Systems, Inc.; Marianas Linen Supply, Inc.; Phil-Gets (Guam) International Trading Corporation dba J&B Modern Tech; Zenaida M. Zantua dba New Fresh Bread Bakeshop; and 5M Construction Corporation.

According to the lawsuit, the average approval rate of H-2B visa petition approvals for Guam was approximately 95 percent between 1995 and 2015. However, for the twelve-month period between June 2015 and May 2016, the approval rate for repeat H-2B filers dropped to 6.8 percent and this year is at 0.3 percent, the complaint states. That means applications for visas for 670 foreign worker were denied or are awaiting denial, according to the plaintiffs.

Some businesses are now having to put operations entirely on hold as a result of being denied H-2B workers. With “around $10 million” in projects pending, 5M Construction Corporation has been forced to stop accepting projects altogether, the lawsuit states.

Larry Manalo, vice president of 5M Construction Corporation, said his company is losing around $5,000 every day for the duration of the construction project as a result of it being on hold.

The company is currently waiting on a pending request for 150 foreign workers, which Davis does not expect to be resolved any time soon.

“It’s like a pipeline,” Davis said. “It’s just stopped. They tie it up in adjudication, and we don’t get a decision one way or another.”

In denying the request by 5M, USCIS stated that 5M had not sufficiently established the truly temporary nature of its need for workers. USCIS also stated that, although 5M cited the impending military buildup on Guam as contributing to its need, 5M had “not presented sufficient evidence that the U.S. military activities qualify as a temporary event.”

Calvo: Foreign work visa denials a major problem

According to Tuesday’s press release, all of the 12 companies named as plaintiffs “consistently relied on various levels of foreign workers in the H-2B program” and had previously had H-2B applications approved under the “peakload” or “one-time occurrence” category “for at least one year and some for as much as 30 years.”

The loss of workers that companies have “consistently” relied on for years means, for executive pastry chef Arthur Zantua, that his New Fresh Bread Bakeshop losing both current customers and any chance at future growth. Zantua is only petitioning the denial of six H-2B visas, but his struggles go beyond his own employees – as 5M Construction loses workers, he said, he loses business to the tune of $300 to $400 a day.

“Most of the H2B workers, before they go to the construction site, they go to my shop to buy breads and buy water,” Zantua said. “So it affects me a lot, mostly those of us in the bakery and retail business, it affects us a lot because our sales drop, because of the H-2B workers going home early or not coming to work.”

Zantua also fears that his business will lose growth opportunities. As a military-approved vendor, he hoped to put in a bid to bake bread for the military. But, he said, “now that we don’t have any visas coming in for workers, it’s very hard” to make any expansion happen.

According to Davis, the defendants have 60 days to respond to the complaint, and so the first hearing on the lawsuit will likely not happen until January.

Labor shortage sparks growing concern

Marianas Linen Supply President Nelson Del Carmen said his business supplies technicians for laundry industrial equipment, and counts the Westin Resort Guam, Hilton Guam Resort and Spa, and Hyatt Regency Guam among his clients. According to Del Carmen, that’s 25 percent of the hospitality linens market.

So if something breaks and he can’t get the technicians he needs, “the hotels won’t be able to get their towels and sheets clean,” Del Carmen said. “There’s a huge indirect impact.”