Seventeen states joined a lawsuit in June to stop the Department of Labor (DOL) from enforcing its new rule providing more protections for farmworkers employed as H-2A temporary visa holders. Now, Judge Lisa Godbey Wood of the U.S. District Court for the District of South Georgia has issued a preliminary injunction preventing the DOL from enforcing the new rule in plaintiff states during the pendency of the case. The regulation is scheduled to come into force in non-plaintiff states on August 29, 2024.
The H-2A program allows U.S. employers and U.S. agents to bring foreign workers to the United States to fill temporary or seasonal agricultural jobs. Unlike H-2B visas for all other temporary or seasonal workers, there is no limit to the number of H-2A visas available annually. However, like H-2B visas, they are only available to workers from eligible countries.
The new regulation was enacted to address abuses related to working conditions and retaliation against farm workers. Among the areas covered, the rule provides that H-2A employers may not retaliate against H-2A visa holders who engage in certain organizing and collective bargaining activities. It was scheduled to take effect on June 28, 2024, but the DOL pushed back the effective date to August 29, 2024 after the litigation was filed in Georgia.
While the court found that the new rule did not exceed the agency's rulemaking authority under the Administrative Procedure Act, it found that the new rule expressly violated the National Labor Relations Act (NLRA) and therefore exceeded the DOL's authority . The court held that the NLRA expressly exempts farmworkers from protections for engaging in community activity and therefore the DOL could not grant these rights. The court focused primarily on the rule's self-representation and labor exploitation provisions, finding that these aspects gave rise to unconstitutional collective bargaining rights.
The injunction will prevent the DOL from enforcing the new rule in the following cases:
- Arkansas
- Florida
- Georgia
- Idaho
- Indiana
- Iowa
- Kansas
- Louisiana
- Missouri
- Montana
- Nebraska
- North Dakota
- Oklahoma
- South Carolina
- Tennessee
- Texas
- Virginia
The injunction also affects the other two plaintiffs, Miles Berry Farm and the Georgia Fruit and Vegetable Growers Association.
Obtaining an H-2A visa is a complex three-step process. It requires a labor certification approved by the DOL. A Form I-129, Petition for Nonimmigrant Worker, must then be filed with USCIS. Finally, the foreign national must apply for the H-2A visa at a consulate abroad. The purpose of the application is to demonstrate that:
- The job offer is temporary or seasonal;
- A labor market test finds that there are not enough workers in the U.S. who are able, willing, qualified and available for the job; And
- The hiring of foreign nationals will not negatively impact the wages and working conditions of similarly situated U.S. workers.
