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. Under statute, DOL is only supposed to grant employers certifications to participate in the program where doing so would not “adversely affect the wages and working conditions” of U.S. workers. DOL has issued regulations that specify that it will only grant certifications where an employer is offering the highest of 4 wages: the prevailing wage, the “Adverse Effect Wage Rate” (AEWR), the state or federal minimum wage, or a collective bargaining agreement wage. In practice, though, DOL has been ignoring the prevailing wage requirement unless state workforce agencies have independently issued a prevailing wage determination – even though DOL itself has made prevailing wage determinations, published on its own website. As a result, DOL regularly grants certifications to employers who are paying less than the prevailing wage. In some cases, DOL is allowing employers to import foreign workers at wage rates of nearly $15 hour less than the prevailing wage in that location and industry.
PCLG filed a lawsuit under the Administrative Procedure Act (APA) on behalf of four U.S. workers who would be willing to work for the prevailing wage, but not for the lower wages being offered, and FLOC, which represents many agricultural workers who participate in the H-2A program, along with co-counsel from Texas Riogrande Legal Aid and Advocates for Basic Legal Equality. The suit challenges both DOL’s policy and practice, and five specific certifications DOL issued, where it approved harvesting and agricultural equipment operating jobs offering less than the prevailing wage in Montana, Nebraska, Nevada, New York, New Jersey, North Dakota, and South Carolina. The suit claims that DOL’s actions are arbitrary, capricious, and contrary to law.
In Fall 2018, the government moved to dismiss the case on the grounds that the individual certifications had expired or would soon expire, and that the policy and practice claims were unripe because DOL might change the regulations at issue. It also asked that the court transfer the case to Chicago if it did not dismiss the case. In June 2019, the court dismissed the challenges to the individual certifications as moot, but otherwise denied the government’s motions.
The parties completed briefing on cross-motions for summary judgment in December 2019 and we are awaiting a decision.