West Virginia, along with Kentucky, Alabama and Ohio, was granted a preliminary injunction against the U.S. Department of Labor’s recent changes to the H-2A Visa Program, West Virginia Attorney General Patrick Morrisey said.
The H-2A program allows agricultural employers who anticipate a shortage of domestic workers to bring nonimmigrant foreign workers to the U.S. to perform temporary agricultural work.
According to the most recent count from the Department of Labor, the agency issued nearly 300,000 H-2A visas in fiscal year 2022, up from fewer than 60,000 a decade earlier.
“This is a win for the rule of law in particular to putting a halt to an attempt from an administrative agency to legislate without the consent of Congress,” Attorney General Morrisey said. “It’s clear from the order Monday that the Department of Labor had overstepped its authority.”
The DOL’s rule change, “Improving Protections for Workers in Temporary Agricultural Employment in the United States,” makes numerous changes to the longstanding H-2A program. Among other provisions, the rule provides new requirements for employers seeking to hire H-2A workers and makes those requirements apply retroactively to employers who have already hired H-2A workers for the current year.
The rule also bars retaliation against H-2A workers who engage in union organizing. The National Labor Relations Act grants those protections to most other private-sector employees, but not farmworkers.
The coalition also believes DOL’s actions will harm the American agriculture industry.
According to Monday’s ruling from the U.S. District Court Eastern District of Kentucky Central Division, “In perhaps its most blatant arrogation of authority, the Final Rule seeks to extend numerous rights to H-2A workers which they did not previously enjoy through its worker voice and empowerment provisions.”
“The DOL has failed to provide sufficient justification for their change in the Final Rule.”
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