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`Case 1:20-cv-01690-DAD-JLT Document 1 Filed 11/30/20 Page 1 of 41
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`Mark D. Selwyn (SBN 244180)
`mark.selwyn@wilmerhale.com
`WILMER CUTLER PICKERING
` HALE AND DORR LLP
`2600 El Camino Real, Suite 400
`Palo Alto, CA 94306
`(650) 858-6031
`Telephone:
`(650) 858-6100
`Facsimile:
`
`Attorney for Plaintiffs
`
`
`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF CALIFORNIA
`FRESNO DIVISION
`
`UNITED FARM WORKERS and UFW
`FOUNDATION,
`
`Plaintiffs,
`
`v.
`THE UNITED STATES DEPARTMENT OF
`LABOR and EUGENE SCALIA, in his official
`capacity as United States Secretary of Labor,
`Defendants.
`
` Case No. _________________
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`Plaintiffs United Farm Workers (UFW) and UFW Foundation for their Complaint against
`Defendants United States Department of Labor (DOL) and Eugene Scalia, in his official capacity as
`United States Secretary of Labor, hereby allege as follows:
`INTRODUCTION
`1.
`The United States critically depends on approximately two to three million
`farmworkers located in rural communities from coast to coast to produce the nation’s food supply and
`contribute to the economy through agricultural exports. Although they are essential to the continuity
`of the American food supply, these farmworkers are vulnerable to wage decline, job loss, or other
`economic dislocation. Their jobs typically offer only subsistence wages, are often seasonal, and are
`vulnerable to fluctuations in the economy. Farmworkers are finding it even more difficult to earn a
`livable wage—and to afford basic needs such as shelter and food—because many are unemployed or
`underemployed due to the COVID-19 pandemic.
`2.
`In creating the H-2A temporary foreign agricultural worker program, Congress charged
`Defendant U.S. Department of Labor (DOL) with ensuring the economic security of U.S.
`farmworkers.1 While federal law permits the entry of foreign agricultural guestworkers in unlimited
`numbers to supplement the U.S. labor supply, DOL is statutorily mandated to protect U.S.
`farmworkers’ jobs and wages from the potentially adverse economic consequences posed by low-cost,
`foreign labor. Accordingly, before U.S. employers can hire foreign labor under the H-2A foreign
`guestworker visa program, DOL must certify that the hiring of those foreign guestworkers “will not
`adversely affect the wages and working conditions of workers in the United States similarly
`employed.”
`3.
`With respect to wages, DOL primarily fulfills that statutory mandate by establishing
`for each state an Adverse Effect Wage Rate (AEWR)—a minimum wage that employers using the H-
`2A program must pay to both U.S. farmworkers and foreign guestworkers. Since the H-2A program’s
`inception in 1986 (except for a brief two-year period starting in 2008), DOL has relied exclusively on
`data from the Farm Labor Survey (FLS) to establish AEWRs. DOL has repeatedly acknowledged that
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`1 See 8 U.S.C. § 1101; see also 29 U.S.C. §§ 1801-1872 (Migrant and Seasonal Agricultural Worker
`Protection Act).
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`the FLS is its preferred data source because it is “the only comprehensive survey of wages paid by
`farmers and ranchers.”2 The fact that the FLS “actually uses information sourced directly from
`farmers” “is a strong advantage of the FLS as the AEWR data source compared to all other
`alternatives.”3 Those data allow DOL to establish AEWRs at market rates that reflect what
`farmworkers are actually paid, which protects wages paid to U.S. farmworkers from being depressed
`or stagnating due to the presence of foreign guestworkers willing to work for less.
`4.
`On November 5, 2020, DOL published a Final Rule in the Federal Register
`announcing changes to its methodology for setting AEWRs under the H-2A program. Ignoring or
`disregarding its own pronouncements that H-2A wages must be closely linked with actual market
`wages paid to farmworkers to protect against adverse effects, the Final Rule untethers the AEWR
`from any measure of market wages. First, the rule freezes AEWRs based on 2019 FLS data for two
`years—meaning that farmworkers’ wages will not increase by even the rate of inflation, let alone
`the higher rates at which farmworkers’ wages have been rising for the last several years. Second,
`the rule announces that starting in 2023, DOL will begin adjusting those frozen AEWRs (still based
`on FLS wage data from 2019) annually, using the Employment Cost Index (ECI). The ECI measures
`the change in the cost of labor by surveying various private industry sectors but not the agricultural
`sector. DOL explained that the recent ECI data showed a significantly slower rate of wage increases
`than recent measures of trends in agricultural worker wages. As a result, like the wage freeze
`arbitrarily keeping 2019 rates in place until 2023, the planned future AEWR adjustments are not
`based on actual conditions in the agricultural labor market. By contrast, the Final Rule creates more
`refined, market-based annual AEWRs for a small set of “higher-skilled” agricultural jobs using the
`Occupational Employment Statistics (OES) survey conducted by the Bureau of Labor Statistics
`(BLS). DOL explains that the shift to OES data for that subset of jobs is necessary to ensure that
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`2 Adverse Effect Wage Rate Methodology for the Temporary Employment of H-2A Nonimmigrants
`in Non-Range Occupations in the United States, 85 Fed. Reg. 70,445, 70,467 (Nov. 5, 2020)
`(emphasis added); see also id. at 70,468 (“[T]he FLS has been the only comprehensive survey of
`wages paid by farmers and ranchers that has enabled the Department to establish hourly rates of
`pay for H–2A opportunities.”).
`3 Temporary Agricultural Employment of H-2A Aliens in the United States, 75 Fed. Reg. 6884,
`6891 (Feb. 12, 2010).
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`AEWRs accurately reflect actual market wages, which is necessary to protect U.S. farmworkers
`from adverse effects.
`5.
`The Final Rule—which becomes effective on December 21, 2020—is unlawful and
`must be set aside under the Administrative Procedure Act (APA).
`6.
`First, the Final Rule contravenes DOL’s statutory mandate because it fails to protect
`U.S. farmworkers from the adverse effects caused by wage stagnation or depression due to an influx
`of foreign guestworkers. As DOL recognizes, H-2A wages must reflect market rates to protect
`against wage stagnation or depression. The Final Rule disregards that principle. Instead, it
`purposefully causes farmworker wages to stagnate by imposing a two-year wage freeze, and it later
`applies adjustments that will produce lower wages, unrelated to market conditions.
`7.
`Second, the Final Rule is arbitrary and capricious. DOL fails to provide a cogent
`rationale for freezing the wage rates for two years and the other rule changes, instead offering
`contradictory and inconsistent justifications. DOL also fails to consider or arbitrarily rejects
`obvious alternatives that would better protect U.S. farmworkers. And even though DOL
`acknowledges that severing the link between H-2A wages and agricultural labor markets will cause
`U.S. farmworkers to be paid substantially less, it has failed to analyze or adequately consider the
`extent and impact of that harm.
`8.
`Third, DOL failed to comply with the APA’s notice-and-comment requirements.
`Although DOL issued a Notice of Proposed Rulemaking in July 2019, the Final Rule is not a logical
`outgrowth of the initial proposal. In light of the fundamental differences between the rules proposed
`in July 2019 and the Final Rule, and the significant changes to assumptions that underlie the July
`2019 proposed rule, DOL was required to provide additional notice and comment before issuing the
`Final Rule. Its failure to do so renders the rule unlawful.
`9.
`DOL’s new AEWR methodology will cause several hundreds of thousands of
`farmworkers already living on subsistence incomes to be paid significantly less than they otherwise
`would. The two-year wage freeze will cause workers to be paid more than 4% less on average than
`they would under DOL’s current regulations. In certain states, like California, Oregon, and
`Washington, those losses would be substantially greater. California farmworkers will be paid
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`almost $1 less per hour under the Final Rule compared to the current methodology, resulting in
`approximately $170 in lost wages per month.4 Oregon and Washington farmworkers would
`likewise be paid about $0.45 less per hour, resulting in approximately $77 in lost wages per month.5
`Moreover, starting in 2023 (after already losing two-years’ worth of wage increases), farmworkers
`wages will increase slower than the market rate. In short, farmworkers will be paid substantially
`less under the Final Rule. Indeed, DOL itself estimated that the methodological change would
`transfer more than $1.6 billion in wages from H-2A farmworkers to agricultural employers over the
`next ten years, with average losses to these foreign guestworkers totaling $167.76 million per year.6
`But this significantly underestimates the harm to farmworkers overall, as DOL declined to estimate
`the costs of either lost wages or lost employment to U.S. farmworkers. Both U.S. farmworkers and
`foreign guestworkers will therefore be irreparably harmed by the Final Rule’s drastic reduction of
`their wages.
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`JURISDICTION AND VENUE
`10. This Court has jurisdiction pursuant to 28 U.S.C. § 1331 over this action for review
`of final agency action under the Administrative Procedure Act, 5 U.S.C. §§ 701-706, and 28 U.S.C.
`§§ 2201-2202 (declaratory and further relief).
`11. Venue is proper in this District under 28 U.S.C. § 1391(e)(1) because Defendants are
`an agency of the United States and an officer acting in his official capacity, no real property is
`involved in this action, plaintiff UFW resides in the District, and the challenged regulations impact
`tens of thousands of farmworkers in the District.
`INTRADISTRICT ASSIGNMENT
`12. This action involves legal challenges to agency action that adversely affects Plaintiff
`UFW, which has its headquarters in Kern County, and thousands of farmworkers living and working
`in Kern County and elsewhere in the Fresno Division. Assignment of this case to the Fresno
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`4 See infra ¶ 92.
`5 See infra ¶ 93.
`6 See 85 Fed. Reg. at 70,472.
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`Division is therefore proper under Civil L.R. 120(d), because a significant portion of the impacted
`farmworkers live or work in or adjacent to counties within that division.
`PARTIES
`13. Plaintiff United Farm Workers is the nation’s first successful and largest farmworkers’
`union with a total membership of over 45,000 members across the nation, including farmworkers,
`both U.S. and foreign, employed at employers that participate in the H-2A temporary foreign worker
`program. UFW is headquartered in Keene, California, and maintains offices in Oregon and
`Washington State, and it has a substantial membership in numerous other states, including in Idaho,
`Arizona, and New Mexico. UFW’s mission is to support the rights and interests of farmworkers,
`including advocating for wages and workplace safety, and to provide farmworkers with the tools
`that they need to succeed. UFW provides services and information to hundreds of thousands more
`farmworkers through social media efforts and a text membership program that reaches farmworkers
`in over thirty states throughout the United States, and through partnerships with La Campesina radio
`network and a network of organizations that provide services to farmworkers, including the UFW
`Foundation, Cesar E. Chavez Foundation, La Union del Pueblo Entero, and the National
`Farmworker Service Center. UFW and its members are particularly interested in farmworker wages.
`UFW’s members have relied on and benefitted from the yearly AEWR wage standards that operated
`as a floor protecting UFW-member farmworkers who work for H-2A program employers.
`Suspension of the FLS and the consequent impairment of the AEWR standard would therefore result
`in substantial decreases to UFW members’ wages. UFW brings this action on behalf of its members
`and farmworkers who rely on those AEWR wages and would suffer substantial harm because of
`DOL’s rule.
`14. Plaintiff UFW Foundation, a sister organization to UFW, is a dynamic non-profit
`organization established in 2006 with the core purpose of empowering communities to ensure
`human dignity. The UFW Foundation has staff serving farmworkers and low-income immigrants
`in California, Arizona, Washington, Oregon, and Michigan. It serves over 100,000 farmworkers
`across the United States. Through worker engagement and legislative advocacy, the UFW
`Foundation seeks to advance the rights of farmworkers. In 2019, the UFW Foundation served over
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`100,000 farmworkers and low-income community members in California and Arizona. More
`recently, the UFW Foundation has distributed emergency relief to farmworkers during the
`pandemic. As of November 2020, more than $11 million in financial assistance has been provided
`to 22,278 farmworkers in California, Oregon, and Washington. The UFW Foundation also helped
`to distribute 189,000 meals and over 46,179 food boxes to California farmworkers in 2020. The
`UFW Foundation’s work and members are directly impacted by increased poverty among
`farmworkers; as such, the UFW Foundation, its members, and farmworkers across the United States
`will be harmed by USDA’s action. The UFW Foundation has also coordinated the distribution of
`over 749,815 masks in rural farmworker communities in California, Oregon, Washington, and
`Michigan since March 2020. In 2019, the UFW Foundation led a campaign to submit over 80,000
`public and farmworker comments regarding the DOL’s proposed rule to enact a series of regulatory
`changes to the H-2A foreign guestworker visa program. At the federal level, the UFW Foundation
`and its farmworker members have educated legislators about the need for basic labor protections for
`both H-2A guestworkers and U.S. farmworkers. The UFW Foundation brings this action on behalf
`of itself and its members and farmworkers who have benefited and will benefit from the services it
`provides, and who would be harmed by DOL’s rule.
`15. Defendant United States Department of Labor is a federal agency of the United States.
`It is responsible for setting minimum wages under the H-2A foreign guestworker visa program and
`certifying that employers are permitted to hire foreign guestworkers under that program.
`16. Defendant Eugene Scalia is the United States Secretary of Labor. The Secretary is
`ultimately responsible for all functions of the United States Department of Labor, including setting
`minimum wages under the H-2A foreign guestworker visa program and certifying that employers
`are permitted to hire foreign guestworkers under that program. He is sued in his official capacity.
`FACTS
`A.
`History and Purpose of the H-2A Program
`17. The H-2A agricultural guestworker program permits agricultural employers to hire
`foreign workers to perform agricultural work on a temporary basis under certain circumstances. The
`modern-day H-2A program traces back to 1952, when Congress passed the INA. The 1952 program
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`authorized the use of temporary foreign labor but did not distinguish between agricultural and non-
`agricultural workers. The H-2 program was available to employers for agriculture and non-
`agriculture jobs until 1986, when the Immigration Reform and Control Act of 1986 (IRCA), P.L.
`99-603, § 301, 100 Stat. 3359 (1986), amended the INA by establishing a separate H-2A visa
`classification for agricultural workers and H-2B for non-agricultural temporary foreign workers.
`18. The 1986 revisions to the foreign guestworker program were motivated by Congress’s
`desire to ameliorate the various problems experienced under the Bracero program, the most
`significant of which was the “inadequacy of ... protections for farmworkers.”7 As explained at the
`time, Congress “was ever mindful of the reports of abuses that occurred during the old Bracero
`program and had no intention of creating an environment conducive to the violation of worker
`rights.”8 The protections afforded to U.S. and foreign guest workers under the H-2A program are
`thus informed by, and should be considered in the context of, the abuses that occurred during the
`Bracero program.
`19. The Bracero program was an agricultural labor agreement intended to increase the
`number of available farmworkers in the United States during the World War II worker shortage by
`authorizing the entry of Mexican nationals for temporary farm work. Formally known as the
`Mexican Farm Labor Program, the Bracero program was created in 1942 through a bilateral
`agreement between the United States and Mexico and was later approved by Congress in 1943.9
`The program was expanded by Congress in 1951 and remained in effect until 1964.10
`20. While the Bracero program was in effect, it “was the chief source of foreign labor in
`the United States.”11 Although the United States benefitted from this cheap source of labor,
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`7 H.R. Rep. 99-682, at 80 (1986); see also Labor Certification Process for the Temporary
`Employment of Aliens in Agriculture and Logging in the United States, 52 Fed. Reg. 20,496 (June
`1, 1987).
`8 H.R. Rep. 99-682, at 83 (citation omitted).
`9 See Adam B. Cox & Cristina M. Rodriguez, The President and Immigration Law, 119 Yale L.J.
`458, 487-488 (Dec. 2009).
`10 Id. at 489-490.
`11 Robert C. McElroy & Earle E. Garett, USDA Econ. Research Serv., Termination of the Bracero
`Program: Some Effects on Farm Labor and Migrant Housing Needs, Agric. Econ. Report No. 77
`(June 17, 1965).
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`Congress acknowledged that “[t]he Bracero program has been likened by some to indentured slavery
`where employer exploitation was rampant and inhumane.”12 Some of the major problems under the
`Bracero program included underpayment, dangerous working conditions, unhealthy living
`conditions, and threats of deportation by employers.
`21. On paper, the Bracero program mandated that employment contracts between the
`Mexican workers and their employers meet certain standards concerning wages and working
`conditions. However, these protections were illusory in practice. Contracts were written only in
`English, which Bracero workers generally did not understand, and many contract terms were not
`enforced.
`22. Beyond the substandard working and living conditions experienced by Mexican
`Bracero workers, the program also caused the wages paid to U.S. workers in the agriculture and
`railroad sectors to decline sharply, despite the inclusion in the Bracero program of mechanisms
`designed to prevent adverse wage effects on U.S. workers.13
`23. Outrage over the inhumane treatment of Bracero workers and the program’s
`downward pressure on wages led Congress to end the program in 1964. When enacting the modern
`H-2A program, Congress was well aware of the past abuses of the Bracero program. Congress
`sought to avoid “creating an environment conducive to the violation of worker rights.”14
`B.
`Farmworkers Depend On The Protections Afforded By H-2A Wages
`24. Estimates of the number of total farmworkers currently in the United States range
`between two to three million. Over 200,000 of these workers are H-2A foreign guestworkers,
`meaning agricultural workers who permanently reside outside the United States but come to the
`United States on nonimmigrant visas to work at a particular job for up to ten months.15 These H-
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`12 H.R. Rep. 99-682, at 83.
`13 See, e.g., Cong. Research Serv., The Effects on U.S. Farm Workers of an Agricultural Guest
`Worker Program 4-5 (Dec. 28, 2009), https://www.everycrsreport.com/files/20091228_95-712_
`73170955c498ebe8f448919eff18c83e240c67e2.pdf.
`14 H.R. Rep. 99-682, at 83.
`15 Daniel Costa & Phillip Martin, Coronavirus and Farmworkers: Farm Employment, Safety
`Issues, and the H-2A Guestworker Program, Econ. Policy Inst. (Mar. 24, 2020),
`https://www.epi.org/publication/coronavirus-and-farmworkers-h-2a/.
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`2A workers were employed in 2019 by approximately 13,000 agricultural employers in the United
`States.
`25. Farmworkers tend to be an impoverished group in the United States, with families
`earning on average $20,000 to $24,999 annually,16 well below the federal poverty line of $26,200
`for a family of four.17 In contrast, the median household income of U.S. families is over $63,000.18
`Nearly half of farmworkers lack a high school diploma, whereas more than 90 percent of the overall
`U.S. working population graduated high school.19
`26. Even among this farmworker population, H-2A workers are particularly vulnerable.
`They generally have little or no ability to speak or understand English and have limited education.
`Moreover, H-2A workers are recruited almost exclusively from countries where their earning
`potential is substantially less than what is offered to farmworkers in the United States. As a result
`of this wage imbalance between the United States and the home countries of guestworkers, even
`very low wages in the United States can be attractive to H-2A workers. Mexican farmworkers
`working in their home country, for example, only earn between about 11% to 13% of what the
`average U.S. farmworker earns.20
`27. Because of the conditions described above, most H-2A workers are desperate for work
`in the United States to support their families. As a result, they are more likely to accept low wages
`than their U.S. counterparts. There is also an understanding among H-2A workers that complaining
`about unfair labor practices may lead not only to losing their current jobs but also to being
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`16 DOL, Findings from the National Agricultural Workers Survey (NAWS) 2015-2016: A
`Demographic and Employment Profile of United States Farmworkers (Jan. 2018),
`https://www.dol.gov/sites/dolgov/files/OASP/legacy/files/NAWS-Research-Report-13.pdf.
`17 U.S. Dep’t of Health & Human Servs., Federal Poverty Level, https://www.healthcare.gov/
`glossary/federal-poverty-level-fpl/.
`18 Semega et al., U.S. Census Bureau, Income and Poverty in the United States: 2018 (June 2020),
`https://www.census.gov/content/dam/Census/library/publications/2019/demo/p60-266.pdf.
`19 USDA Econ. Research Serv., Farm Labor (Apr. 22, 2020),
`https://www.ers.usda.gov/topics/farm-economy/farm-labor/.
`20 Workers on Mexico’s Export Farms, Rural Migration News (Nov. 19, 2019),
`https://migration.ucdavis.edu/rmn/blog/post/?id=2367.
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`“blacklisted” from future participation in the H-2A program, threatening not only their current
`earnings but their families’ future economic survival.
`28. The structure of the H-2A program also renders H-2A workers vulnerable to economic
`exploitation, including low wages. When an H-2A worker receives an H-2A visa, that visa is
`specific to the petitioning employer, meaning that the worker is authorized to work for that employer
`only. The worker is thus wholly dependent on that employer for his visa. If the worker leaves this
`employer, he is obligated by the terms of his visa to immediately leave the United States and cannot
`seek other work before leaving. H-2A workers therefore lack the fundamental economic freedom
`of U.S. workers—they are not permitted to sell their labor on the open market to the employers who
`will pay them the best wages and provide safe working conditions. And if an H-2A worker wants
`to return to the United States to work during subsequent farming seasons, the worker is again
`dependent on an employer to sponsor the worker for a visa. Since employers can effectively force
`H-2A workers to leave the United States and prevent or make it more difficult for them to return in
`following years, those workers have little recourse if they wish to seek better pay.
`29. U.S. farmworkers’ already impoverished economic condition, combined with the
`power imbalance that compels foreign guestworkers to work for lower wages, demonstrates the
`importance of the H-2A program’s wage protections. Without a meaningful wage floor, U.S.
`employers would be able to hire foreign guestworkers at rates well below those paid to U.S.
`farmworkers. That downward pressure on wages would have a drastic impact on U.S. farmworkers’
`ability to earn a sustainable wage.
`30. Employers’ use of the H-2A program has increased significantly over the last several
`years based on claims of labor shortages. In fiscal year 2020, for example, DOL authorized
`employers to hire 275,430 foreign guestworkers.21 That number represents a dramatic increase from
`previous years. For instance, employers obtained approval to hire only 162,720 foreign
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`21 DOL Office of Foreign Labor Certification, H-2A Disclosure Data FY2020,
`https://www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/H-2A_Disclosure_Data_FY2020.xlsx.
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`Case 1:20-cv-01690-DAD-JLT Document 1 Filed 11/30/20 Page 12 of 41
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`guestworkers in fiscal year 2015.22 Given that trend, the substantial use of the H-2A program will
`likely continue in 2021 and beyond.
`31. Unsurprisingly, those growing labor demands and the tight agricultural labor market
`have resulted in steadily increasing farmworker wages. FLS data reflects that national farmworker
`wages have increased by over 4% per year since 2015.23 Wages have increased by greater amounts
`in states with a substantial number of H-2A workers.24 By comparison, wages in the overall U.S.
`economy have increased by an average of only 2.48% between 2015 and 2019.25
`C.
`The Immigration and Nationality Act Mandates That DOL Prevent The Hiring
`Of H-2A Guestworkers From Adversely Affecting The Wages Paid To U.S.
`Farmworkers
`32. The H-2A program is rooted in the Immigration and Nationality Act of 1952 (INA),
`which created a broad class of temporary, non-immigrant “H” visas for temporary admission of
`foreign workers to provide temporary or seasonal labor in sectors of the economy where there are
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`22 DOL Office of Foreign Labor Certification, H-2A Disclosure Data FY2015,
`https://www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/H-2A_Disclosure_Data_FY15_Q4.xlsx.
`23 See USDA, Farm Labor Report 1 (Nov. 21, 2019), https://downloads.usda.library.cornell.edu/
`usda-esmis/files/x920fw89s/c821h164m/fq9788943/fmla1119.pdf (“The 2019 annual average
`combined gross wage for field and livestock workers was $13.99, up 6 percent from the 2018
`annual average of $13.25 per hour.”); USDA, Farm Labor Report (Nov. 15, 2018),
`https://downloads.usda.library.cornell.edu/usda-esmis/files/x920fw89s/9g54xm59d/j96024106/
`fmla1118.pdf (“The 2018 annual average combined wage for field and livestock workers was
`$13.25, up 6 percent from the 2017 annual average of $12.47 per hour.”); USDA, Farm Labor
`Report (Nov. 16, 2017), https://downloads.usda.library.cornell.edu/usda-esmis/files/x920fw89s/
`m613n0170/db78td76w/FarmLabo-11-16-2017.pdf (“The 2017 annual average combined wage
`for field and livestock workers was $12.47, up 2 percent from the 2016 annual average of $12.20
`per hour.”); USDA, Farm Labor Report (Nov. 17, 2016), https://downloads.
`usda.library.cornell.edu/usda-esmis/files/x920fw89s/gh93h108v/c534fq60m/FarmLabo-11-17-
`2016.pdf (“The 2016 annual average combined wage for field and livestock workers was $12.20,
`up 4 percent from the 2015 annual average of $11.74 per hour.”); USDA, Farm Labor Report
`(Nov. 19, 2015), https://downloads.usda.library.cornell.edu/usda-esmis/files/
`x920fw89s/pg15bg444/9w0324494/FarmLabo-11-19-2015.pdf (“The 2015 U.S. annual average
`combined wage for field and livestock workers was $11.74, up 4 percent from the 2014 annual
`average of $11.29 per hour.”).
`24 See, e.g., DOL, AEWR Trends, https://www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/2c.%20
`AEWR%20TRends%20in%20PDF_12.16.19.pdf (showing recent wage increases of 4.2%, 5.2%,
`5.3%, 6.1% in Florida, Georgia, Washington, and California, the states with the most H-2A jobs in
`FY2019).
`25 BLS, Employment Cost Index: Historical Listing 3 (Oct. 2020), https://www.bls.gov/web/eci/
`ecicois.pdf.
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`Case 1:20-cv-01690-DAD-JLT Document 1 Filed 11/30/20 Page 13 of 41
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`shortages of U.S. workers.26 More than three decades later, IRCA amended the INA to establish
`the separate H-2A visa classification for agricultural labor.27 As amended, the INA prohibits the
`Department of Homeland Security from issuing an H-2A visa unless the employer seeking to import
`foreign guestworkers has applied for and received a certification from DOL that: (a) “there are not
`sufficient workers who are able, willing, and qualified, and who will be available at the time and
`place needed, to perform the labor or services involved in the petition,” and (b) the foreign workers’
`temporary employment “will not adversely affect the wages and working conditions of workers in
`the United States similarly employed.”28
`33. Thus, while the INA allows employers to import foreign guest workers in response to
`U.S. worker shortages, the INA’s manifest purpose is to protect U.S. workers from the potential
`adverse effects caused by an influx of guestworkers.29 The first prong of this certification
`standard—which reflects a congressional policy of preferring the employment of domestic
`farmworkers—protects U.S. workers by prohibiting agricultural employers from importing foreign
`guestworkers unless they have shown that the U.S. labor market cannot supply the required workers.
`And the second prong requires that this supplemental, foreign labor supply not harm U.S.
`farmworkers’ wages and working conditions. The two prongs are intertwined because shortages of
`U.S. workers could result if the offered wages and working conditions are so inadequate that U.S.
`workers are deterred from applying for those jobs, and employers would not need to improve those
`wages and working conditions (thereby increasing the domestic labor supply) because they are
`acceptable to vulnerable foreign farmworkers.
`D.
`DOL’s New Rule Fails To Protect U.S. Farmworkers From The Adverse
`Effects Of Hiring Foreign Guestworkers Or Offer A Cogent Rationale For The
`New H-2A Wage Methodology
`34. As discussed, employers are only authorized to hire foreign guestworkers under the
`H-2A program if DOL certifies that the foreign workers’ temporary employment “will not adversely
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`26 See 8 U.S.C. § 1101(a)(15)(H)(ii)(a).
`27 See P.L. 99-603, Title III, 100 Stat. 3359 (Nov. 6, 1986).
`28 8 U.S.C. § 1188(a).
`29 See, e.g., Va. Agric. Growers Ass’n, Inc. v. U.S. Dep’t of Labor, 756 F.2d 1025, 1028-1031 (4th
`Cir. 1985); Elton Orchards v. Brennan, 508 F.2d 493, 500 (1st Cir. 1974).
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