Federation of Employers and Workers of America v. Noem

The H-2A and H-2B visa programs allow employers to petition the Department of Homeland Security for visas on behalf of foreign workers to perform work when there is an insufficient supply of domestic labor. While the programs contain protections for the largely low-wage workers and domestic workers working those same jobs, reports of abusive working conditions from H-2 workers are common. And because quitting or being fired would lead to the loss of legal status in the United States, many workers do not speak up. In addition, many workers report being charged recruitment or other fees by employers and recruiting agents, although the fees are prohibited.

In 2024, the Department of Homeland Security amended its regulations to provide for whistleblower protections for H-2 workers, to create “grace periods” that allow H-2 workers to remain in the country for a short period of time after the unexpected end of their employment, to alter the penalties for illegal fee collection, and to impose greater scrutiny on employers who have previously been found to violate the program rules or employment laws. Several employer associations challenged the rule, arguing that certain aspects of the rule were impermissibly retroactive, vague, and arbitrary and capricious, and asking for the entire rule to be vacated.

Representing Centro de los Derechos del Migrante (CDM), a nonprofit organization that works with migrant workers in the United States and Mexico and is focused on promoting migrant workers’ rights under U.S. law, Public Citizen filed an amicus brief in opposition to the employers’ motion for summary judgment and in support of the government’s cross-motion for summary judgment. The brief argues that the provisions of the rule addressed by the employers are not unconstitutionally vague or retroactive, and that the challenged provisions are severable from the remainder of the rule, which provides real benefits to the workers CDM serves.