Established by Congress in the Immigration and Nationality Act, the H-2A visa program allows employers to hire foreign workers to perform agricultural labor when there are not enough qualified and available U.S. workers to fill open jobs. The program is primarily administered by the U.S. Department of Labor (DOL) and affects a substantial number of workers. For example, in Fiscal Year 2018, DOL approved 242,000 H-2A jobs.
In 2017, the White House established an Interagency Working Group to identify issues under the H-2A program. The Interagency Working Group appears to have included the U.S. Department of Agriculture (USDA), the Department of Homeland Security, the Department of State, and DOL, and apparently was led by the Secretary of Agriculture—Sonny Perdue. The Interagency Working Group appears to have primarily spoken with farm owners, with the help of agricultural business trade associations, in reviewing the H-2A program.
On April 20, 2018, Farmworker Justice submitted a Freedom of Information Act (FOIA) request to USDA for records related to this Interagency Working Group. Farmworker Justice repeatedly followed up with the agency about the status of the FOIA request and the production of responsive records but did not receive a determination or any records from USDA.
Represented by Public Citizen Litigation Group, Farmworker Justice filed a lawsuit in June 2019 challenging USDA’s failure to respond to its FOIA request. After the lawsuit was filed, USDA conducted a search and located responsive records, which it produced in part in six monthly productions from September 2019 to February 2020. After Farmworker Justice disputed some of the withholdings, USDA made supplemental productions during May, July, and August 2020. The parties then filed cross-motions for summary judgment concerning some of the remaining redactions.
On March 4, 2021, the Court entered a Memorandum Opinion and Order granting our motion for summary judgment with regard to the material redacted under Exemption 4 and ordering that it be produced. The Court further held that USDA had failed to justify its redactions under Exemption 5, but the Court ordered that USDA be given a second chance to meet its burden. Rather than try to meet its burden to justify its withholdings under Exemption 5, USDA produced in full the information that had previously been redacted. After settling our claim for attorneys’ fees, we dismissed the case.