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Kansas v. U.S. Department of Labor

The H-2A program allows agricultural employers to hire temporary non-immigrant workers, when the Department of Labor has found that there are insufficient domestic workers available and that the hiring of H-2A workers will not have an adverse effect on the wages and working conditions of domestic workers. Congress has also tasked DOL with enforcing a number of other requirements for H-2A employers.

In April 2024, DOL updated its H-2A regulations to provide additional protections for H-2A workers—including changing when annual updates to minimum required wages go into effect, adding non-retaliation provisions for workers’ concerted activity, and ensuring that migrant workers have access to key social and other service providers.  In so doing, DOL explained that substandard practices in H-2A employment had an adverse effect on the wages and working conditions of domestic employers and noted that retaliation and other practices make it more difficult for the agency to enforce existing requirements of the program.

Seventeen states, a grower association, and an individual grower sued DOL in federal court asking that the rule be vacated. They moved for a preliminary injunction, arguing that the rule conflicts with the National Labor Relations Act, exceeds DOL’s statutory authority, and is arbitrary and capricious.

On behalf of Centro de los Derechos del Migrante, Inc. (CDM), a nonprofit that provides services to farmworkers, and Candelario Rodriguez Serrano and Jorge Sánchez Reyes, two H-2A farmworkers, Public Citizen moved to intervene in the litigation to defend the rule. We also filed  an opposition to the plaintiffs’ motion for a preliminary injunction, explaining that the Rule was a lawful exercise of DOL’s authority and that the plaintiffs had not satisfied the other requirements for a preliminary injunction.