UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA HICKORY FOODS, INC., et al., Plaintiffs, v. Civil Action No. 1:21-cv-1196 (CJN) ALEJANDRO MAYORKAS, et al., Defendants. MEMORANDUM OPINION Hickory Foods, Inc. submitted a petition with the Department of Homeland Security to hire a foreign worker. See generally Compl., ECF No. 1. Homeland Security denied the petition because it failed to include all the required documentation. Id. The company’s subsequent efforts to correct the failure proved futile because a component of the petition known as the “labor certification” had expired by the time of resubmission. Id. Hickory Foods asserts various reasons why the Government’s failure to approve the petition is unlawful. See generally id. The Government has moved to dismiss the complaint. See generally Def.’s Mot. to Dismiss (“Def.’s Mot.”), ECF No. 9. The Court grants the Government’s Motion for reasons that follow. I. Statutory Background The Immigration and Nationality Act allocates a certain number of employment-based immigrant visas to be issued every year depending on the relevant preference category. See 8 U.S.C. § 1153(b). The category relevant here consists of three classifications: skilled workers, professionals, and other workers. Id. § 1153(b)(3). Though Homeland Security has primary responsibility over the administration of the INA, Congress has granted the Labor Department a significant role in deciding under what circumstances an employer may employ foreign workers. 1 See id. § 1182(a)(5)(A)(i). All said, the statutory framework that forms the backdrop for the process relevant here involves two agencies and three steps. Step one involves the employer obtaining a “labor certification” from the Labor Department. Id. § 1153(b)(3)(C). The governing regulation provides that “an employer who desires to apply for a labor certification on behalf of an alien must file a completed Department of Labor Application for Permanent Employment Certification form (ETA Form 9089).” 20 C.F.R. § 656.17(a)(1). It also states that Homeland Security “will not process petitions unless they are supported by an original certified ETA Form 9089 that has been signed by the employer, alien, attorney and/or agent.” Id.; see also id. (“Incomplete applications will be denied.”). Once the Labor Department issues a labor certification, it remains valid for 180 days from date of certification. 20 C.F.R. § 656.30(b)(1); 8 U.S.C. § 1182(a)(5)(A)(i) (explaining that the Labor Department certifies (1) that hiring an alien “will not adversely affect the wages or working conditions” of similarly situated domestic workers, and that (2) an insufficient number of “qualified” domestic workers exist on the job market). At step two, after the Labor Department grants a labor certification, the employer must file something called a Form I-140 petition with Homeland Security.1 The applicable regulation provides that a Form I-140 petition is “properly filed” when it is, among other things, “[a]companied by any required individual labor certification.” 8 C.F.R. § 204.5(a)(2). Homeland Security may deny a petition for failure to submit requested evidence or supporting documents in 1 Technically, the employer files the paperwork with Citizenship and Immigration Services (a subagency of Homeland Security). 2 accordance with …
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