NCAE Files Legal Challenge to Unlawful H-2A Program Rule

November 23, 2022

(Washington, D.C.)

The National Council of Agricultural Employers (NCAE) filed a legal challenge today to the new H-2A Program Rule that is supposed to take effect on November 30, 2022. The lawsuit filed today alleges that the Department of Labor has, “unlawfully repealed a final rule duly issued, prescribed, or promulgated to achieve DOL’s statutory mandate set forth in the Immigration and Nationality Act”.

The action was filed in the District of Columbia District Court. The lawsuit cites six causes of action and seeks a preliminary injunction, a permanent injunction, a stay of its implementation, as well as costs, among other relief.

“The nature of the changes will have a dramatic and negative effect on U.S. farm and ranch families whether they use the H-2A program or not,” said Michael Marsh, NCAE President and CEO. “The Trump Administration issued a rule that was a final agency action. However, on Inauguration Day, which is a federal holiday, the new Biden Administration unlawfully withdrew the Trump Rule from publication at the Federal Register without any of the required public notice and comment. The new Administration then substantially changed the rule Trump’s DOL had created to the detriment of farm and ranch families and again, failed to provide opportunity for required notice and comment. The actions here were clearly arbitrary and capricious and an abuse of discretion by the Secretary and otherwise not in accordance with
Recent analysis performed on the impact of this new regulation by the Cato Institute, indicates that not only does this rule slam farm and ranch families with enormous new burdens and negatively impact their viability, but it also “…will add to the already sky-rocketing food prices in the United States.”

“This regulation is a lose-lose-lose scenario.” said Marsh, “The farm and ranch families we represent lose, the essential farmworkers our members work with every day lose, and it hits consumers in the pocketbook. We must seek relief from this arbitrary and capricious regulation. The Secretary must follow the law and it is in the public interest that the U.S. government does just that.”

NCAE is the national trade association focusing on agricultural labor issues from the employer’s viewpoint.

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