Source: Alyssa Aquino, LAW 360, 3/22/21

 The U.S. Department of Labor prevailed over claims that it improperly cleared agricultural businesses for H-2A migrant worker visas despite missing prevailing wage data, after a D.C. federal court ruled that the government isn't required to consider unavailable information. U.S. District Judge Randolph Moss overruled agricultural workers' claims that the DOL, when faced with missing prevailing wage data, was required to calculate the prevailing wage rate itself before it could provide labor certifications to domestic businesses seeking foreign workers. That requirement not only wasn't in the DOL's implementing regulations, but it would "destroy" the program, Judge Moss said Friday. "The agency's regulations are supposed to implement the H-2A program, not destroy it," Judge Moss said. "So viewed, the court agrees with defendants that the regulations are best read to require the consideration of the prevailing hourly wage rate if, and only if, that wage has in fact been calculated by a [state workforce agency]."

The decision was a blow for the four agricultural workers who took the DOL to court in August 2018 over its handling of the H-2A visa program. The program allows domestic businesses to temporarily bring in foreign workers after they have shown that there's a shortage of domestic workers and that the foreign workers wouldn't depress the wages of their American counterparts. The DOL, in turn, assesses the wage issue by comparing H-2A hopefuls' offered hourly wage against the highest of four wage rates: the local prevailing wage rate — which is calculated by state workforce agencies — the adverse effect wage rate, the applicable minimum wage and the union wage. But the workers — who were joined by the Farm Labor Organizing Committee, a farmworker union with 8,000 members — pointed out that state workforce agencies often fail to conduct the wage surveys needed to calculate a prevailing wage. In 2019, 40 out of 53 U.S. states and territories didn't conduct the surveys, according to court filings. Faced with missing information, it was up to the DOL to calculate the prevailing wage itself, the workers argued. Instead, the agency maintained a practice of ignoring the rate altogether and comparing businesses' offered salaries to the highest of the three available ones.

The workers claimed that the practice led the DOL to issue labor certificates to businesses that didn't offer highenough wages, stressing several instances where the prevailing wage — when available — was the highest of all four H-2A benchmarks. The department countered that assessing the offered salary against the "highest of three" was allowable under its regulations. Judge Moss agreed. He pointed out that not every job has a union wage, making it unclear how the DOL could issue H-2A labor certificates under the workers' interpretation of the regulations, which only require an employer to pay the highest of the four benchmarks.

"A benchmark that does not exist cannot exceed any of the other benchmarks, and thus one of the existing benchmarks will necessarily control," he said. "The regulations, in short, are best read to require payment of the highest of the existing benchmarks."

He found that the DOL's rulemaking history supported this interpretation. Three rules from 1987, 2008 and 2010 each "expressly conditioned" the prevailing wage on the existence of state surveys, according to the complaint. Judge Moss additionally rejected claims that the policy went against the Immigration and Nationality Act's mandate that foreign workers don't adversely affect their American counterparts. The "mere fact" that alternative wage metrics could lead to higher wages didn't mean that hiring foreign workers at the salary thresholds would depress U.S. worker wages, he said.

"Indeed, it is not difficult to imagine yet additional measures of wages that are not included, and were never included, in DOL's assessment," he said. "No one, including Plaintiffs, contends that the absence of those additional, hypothetical measures violates the INA." Adam Pulver, counsel for the workers, told Law360 on Monday that his team was evaluating its options, noting that Judge Moss "made clear" that the DOL's practice was agency policy.

"There's nothing that would stop the new administration from taking a look at that policy and changing the way it approaches this issue," Pulver said. He further pointed out that the Biden administration has already recalled its predecessor's proposed overhaul to the H-2A program. "We anticipate a holistic evaluation of the H2A program," he said.

Representatives for the government didn't respond to Monday requests to comment. The workers are represented by Michael Kirkpatrick and Adam Pulver of the Public Citizen Litigation Group. The government under the Trump administration was represented by Joshua Press of the U.S. Department of Justice's Civil Division. The case is Garcia et al. v. Stewart et al., case number 1:18-cv-01968, in the U.S. District Court for the District of Columbia.