Department of Labor denies trucking company’s bid to hire foreign truckers

The Department of Labor has denied I Transport’s application for temporary alien labor certification under the H-2B non-immigrant program.

In November, I Transport submitted an H-2B Application for Temporary Employment Certification. The trucking company wanted to hire 10 truck drivers from Feb. 4 through Nov. 3.

The Department of Labor found several issues with I Transport’s application, including these:

• Failed to establish the job opportunity as temporary in nature.
• Failed to establish that there is a temporary need for the number of workers requested.
• Improperly listed numerous worksites outside of the listed area of intended employment.
• Job order improperly listed the job type as “regular,” as opposed to temporary.
• The basic wage offered was inconsistent throughout the application.

In December, Fontana,-Calif.-based I Transport submitted additional documentation and explanation in support of its H-2B application. However, the Department of Labor still found that the trucking company did not establish that the job is temporary in nature, among other several other issues. In January, I Transport requested administrative review.

In its H-2B application, I Transport explained the need for temporary workers.

“The need to hire foreign drivers has arisen from the ongoing and critical shortage of truck drivers in the U.S. Two thirds of all freight is transported on trucks in U.S. and keeping trucks moving is critical for U.S. economy. There have been numerous articles and reports of truck driver shortage which is only getting worse. The solution and the need of the hour is to hire foreign drivers to fill the gap and fill those positions.”

However, the Board of Alien Labor Certification Appeals determined that “it is abundantly clear from the record that (I Transport) did not establish a temporary peak load need for workers.”

Specifically, the board found that the purported payroll documents submitted with the H-2B application are actually IRS 1099 forms that reflect non-employee compensation.

“Thus, based on the evidence in the record (and in contrast to employer’s statement that it employs five truck drivers), it appears that (I Transport) does not permanently employ any truck drivers but instead utilizes independent contractors,” the Board of Alien Labor Certification Appeals states in its order. “Employer has not met its burden of showing that ‘it regularly employs permanent workers to perform the services or labor at the place of employment.’”

Also, the Department of Labor found that I Transport did not offer a reason in its H-2B application why its business is particularly heavy in the months of requested need. Rather, the company claims that a national driver shortage as the reason it needs to hire foreign labor. However, a labor shortage alone does not meet the regulatory requirements for granting a temporary labor certification, according to the Board of Alien Labor Certification Appeals’ order. LL