Question: During August to October 2002, Cianbro Corporation applied to the United States Department of Labor and the Maine Department of Labor for H-2B temporary labor certifications for as many as 120 foreign workers to be employed as structural and pipe welders on two giant oil rigs known as the Amethyst 4 and 5 that were under construction in the harbor of Portland, Maine. To make their determinations, the DOL and the Maine DOL were required to calculate prevailing wages and working conditions for the jobs for which Cianbro sought temporary labor certifications pursuant to a DOL regulation, 20 C.F.R. § 656.40. Federal regulations (8 C.F.R. § 214.2(h)(6)(iii)(A)) provided that before filing a petition with the INS (now USCIS) director in whose jurisdiction a petitioning employer intends to employ an H-2B nonagricultural temporary worker, the employer must apply for a temporary labor certification with the Secretary of Labor.
The Secretary of Labor's temporary labor certification provided advice to the INS director on "whether or not United States workers capable of performing the temporary services or labor are available and whether the alien's employment will adversely affect the wages and working conditions of similarly employed United States workers." Many qualified and available U.S. workers applied for positions with Cianbro as structural and pipe welders during the period when the DOL was supposed to be reevaluating the matter after receipt of the relevant union's letter, opposing the company's application; however, none was offered employment by Cianbro. Meanwhile the federal and state agencies proposed to issue more than 50 H-2B visas. On March 21, 2003 the relevant unions filed an application for a temporary restraining order. Should the court grant this TRO, blocking the issuance of the H-2B visas, pending resolution of the unions' objections? What policy considerations should the judge take into account on both sides of the controversy when making this decision? See Maine State Building and Construction Council v. Chao, 265 F. Supp.2d 105 (D. Maine 2003).