Florida Record

Monday, December 9, 2019

Court denies Florida businesses temporary restraining order in H-2B foreign worker applications case

Federal Court

By Marian Johns | Jul 27, 2019

General court 07

FORT MYERS — An Orlando landscaping company and an Englewood, Florida, restaurant have been denied a temporary restraining order as part of their efforts to stop the U.S. Department of Labor's "lottery selection process" for review of H-2B foreign worker applications. 

According to the July 2 U,S. District Court for the Middle District of Florida Fort Myers Division filing, plaintiffs Carol King Landscaping Maintenance Inc. and America At Play Inc., doing business as Beach Road Wine Bar and Bistro, asked the court for a ex-parte temporary restraining order and preliminary injunction against U.S. Secretary of Labor Alexander Acosta, acting assistant labor secretary Molly Conway, and deputy assistant labor secretary Thomas Dowd. 

The plaintiffs allege the U.S. Department of Labor's newly implemented lottery selection process, which includes "randomly selecting" and processing H-2B visa applications filed within the first three days of the season until the department's 33,000 worker cap has been met, drastically harms their small businesses that "rely heavily on seasonal workers."

The Department of Labor implemented the lottery process after it received a high number of applicants that crashed the department's electronic filing system in January. 

The plaintiffs also argue that the Department of Labor violated the Administrative Procedures Act (APA) by circumventing the "APA's notice and comment rule making requirements" when it labeled the proposed HB-2 visa application process change as a "procedural rule" to avoid the need for congressional approval of the change. 

U.S. District Court Sheri Polster Chappell denied the plaintiffs' motion for an ex-parte injunction stating they "did not timely act to submit comments" during the public comment period prior to the rule being initiated.

Chappell also stated that even though "this case presents a true emergency" which the plaintiffs "should have sought to prevent months ago" the court will take the plaintiffs' motion for a preliminary injunction "under advisement" pending a hearing later in the month. 

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U.S. District Court for the Middle District of Florida, Fort Myers Division

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