By Jennifer Doherty

Law360 (October 6, 2020, 7:26 PM EDT ) A Kentucky manufacturing facility seeking expedited approval to recruit foreign workers for a contract with Toyota hit a roadblock when the U.S. Department of Labor denied its appeal Monday, saying the company failed to prove U.S. workers were unavailable.

Administrative Law Judge Tracy A. Daly sided with a DOL certifying officer, or CO, in her decision, affirming the official's move to deny Highlands Diversified Services an emergency waiver for filing its H-2B temporary worker visa program application late. 

Filing 38 days before the planned start of its contract with Toyota, instead of the department's stipulated 90 to 75 days, Highlands had not left enough time to determine whether an adequate number of workers could be located domestically, Judge Daly said in her decision for the Board of Alien Labor Certification Appeals.

"The fact [the] employer may have previously made robust efforts to recruit workers to fill the positions does not negate the CO's concern about thoroughly testing the domestic labor market during the time period immediately preceding the application," she said.

In its application, Highlands said it was seeking 100 H-2B visas for general laborers to work between Oct. 1 and Sept. 30, 2022, because past efforts to recruit locally for the positions — including running ads in four newspapers and on two billboards, establishing 10 advertising and recruiting partnerships, and working with three temporary staffing agencies — had fallen flat.

Highlands included a letter from the director of the London-Laurel County Economic Development Authority calling the H-2B visas the company's "last possible solution."

The company also cited a 10-week shutdown caused by the ongoing COVID-19 pandemic as contributing to the urgency of its application.

In response, Judge Daly acknowledged Highlands' previous "sincere and considerable effort to recruit employees" but once again agreed with the CO, who pointed out that the pandemic had led to a 20-year high in U.S. unemployment, potentially creating a new labor source for Highlands to tap.

As of September, the civilian unemployment rate sat at 7.9%, down from a peak of 14.7% in April, according to the U.S. Bureau of Labor statistics.

While the CO determined that the pandemic "constituted good and substantial cause" for Highland's request, the judge concurred with her that Highlands "has not provided detailed information connecting the good cause with the employer's need for a waiver under the circumstances."

Judge Daly affirmed the CO's decision to deny the waiver as a reasonable exercise of her discretion.

The decision landed just days after the department's Office of the Inspector General published a report that criticized the DOL's oversight of companies utilizing the H-2B program and the H-2A visa program for agricultural workers. The OIG called on the department to conduct more targeted audits of companies that are likely to violate the program rules.

As of Oct. 1, almost 16,800 H-2B beneficiaries had been approved for the first half of fiscal year 2021, just over half of the number allowed under the 33,000-person cap for that period, according to U.S. Citizenship and Immigration Services.

Counsel for Highlands did not immediately respond to a request for comment Tuesday.

Highlands Diversified Services is represented by Elizabeth Buckley of Conley Law Group PLLC.

The case is In the Matter of Highlands Diversified Services, case number 2020-TLN-00069, in the Board of Alien Labor Certification Appeals.

--Additional reporting by Suzanne Monyak. Editing by Jack Karp.

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