Fourth Circuit Skeptical of Illegal Labor Case Against H-2A Rule

A federal appeals court panel in Richmond, Va., appeared doubtful of claims that wage increases mandated for foreign farmworkers on seasonal visas should be blocked because of their potential effect on illegal hiring.

USA Farm Labor made projected increases in employer use of unauthorized labor central to its arguments before the US Court of Appeals for the Fourth Circuit on Wednesday. The group, which seeks to block Labor Department wage regulations on the H-2A visa program, also accused the government of inadequately accounting for costs employers would bear from new wage increases.

The relevant section of the Immigration and Nationality Act doesn’t specifically mention illegal immigration, Judge DeAndrea Gist Benjamin, a Biden appointee, noted.

“It talks about depression of wages for domestic workers,” she asked. “Why should DOL have considered illegal immigration?”

Wendel Hall, an attorney for USA Farm Labor, told the panel that the agency itself in 2020 regulations noted that setting wages too high could harm US workers by incentivizing use of illegal labor.

“If you drive people out of the H-2A program, they don’t go hire more domestic workers,” he said. “What they do is go find people who are unauthorized.”

Statute’s Focus

Regulations finalized last year overhauled the adverse effect wage rate, which governs minimum pay for most of the 300,000 some foreign farmworkers in the US on seasonal H-2A visas. The Biden administration rule adopted new survey data to set wages for some specialty jobs like supervisors and truck drivers. It also mandated that employers pay the highest wage if a worker’s job duties fall under multiple job classifications.

The appellants and other agricultural employers have claimed increased labor costs from that rule will be “devastating” for those reliant on the H-2A program, making illegal hiring more likely. That’s the overarching concern of the Immigration Reform and Control Act of 1986, which authorized the visa program, Hall told the judges.

But Alexandra McTague, a Department of Justice attorney representing the DOL, said there haven’t been any decisions finding the agency must consider illegal immigration in rulemaking on the program.

“They have to certify that there aren’t sufficient workers available and that the hiring of an H-2A worker will not cause adverse effects on wages and working conditions of US workers similarly employed,” she said of the statutory language on the program. “It doesn’t talk about illegal immigration,”

The panel Wednesday also included Judge Robert B. King, a Clinton appointee, and Nicole G. Berner, a Biden appointee.

Regulatory Regime Tested

The adverse effect wage rate rule is part of a larger regulatory overhaul of the H-2A program, which accounts for a growing share of the US agricultural labor force. Industry groups have repeatedly sued over the new rules, including three separate suits challenging the AEWR standards.

A federal judge in Louisiana this month issued a partial injunction on the rule for sugar cane growers challenging the rule in that state. The judge found that a US Supreme Court decision overturning judicial deference to agencies’ interpretation of ambiguous statutes undermined the agency’s arguments. Another challenge in a Florida federal court failed to win an injunction.

Berner asked what degree of deference the panel owes to the DOL’s cost projections for the rules after Chevron deference was overturned in Loper Bright Enterprises v. Raimondo.

McTague said Loper Bright allows that some laws delegate clear authority to agencies, including the section of the Immigration and Nationality Act directing the DOL to certify that hiring of H-2A workers won’t harm similarly employed US workers.

“The way in which they do that is what’s been delegated under the statute,” she said.

The case is USA Farm Labor v. Su, 4th Cir., No. 23-02108, oral arguments 9/25/24.