The Department of Labor issued regulations in October relating to H-2A program visas.  The rules were intended to improve safety and health protection for workers, to streamline and update bond requirements for labor contractors in order to hold them accountable. The Rule mandates electronic filing for applications to expedite processing and to establish procedures to determine prevailing wages.

The National Council of Agricultural Employers (NCAE) has filed a lawsuit alleging that the Department of Labor unlawfully repealed an existing final rule “duly issued, prescribed or promulgated to achieve statuary mandates set forth in the Immigration and Nationality Act”.

The NCAE claims that the regulations would have “a dramatic and negative effect on U.S. farm and ranch families”.  In the filing with the District of Columbia District Court, the lawsuit maintains that the current Administration unlawfully withdrew an existing rule issued by the previous Administration without required public notice and opportunity for comment.

It is difficult to envisage how farm laborers will be placed at a disadvantage with respect to the new rule that requires higher standards of accommodation and safety and health protection.  It is evident that the rule will increase the cost of employing H-2A workers but that is the motivation for litigation.  There is, however, some support for the NCAE position if in fact, the Administration issued the rule in an “arbitrary and capricious” manner.