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The Federation of Employers and Workers (FEWA) along with several allied organizations filed a lawsuit on behalf of the H-2 community against the U.S. Department of Homeland Security and U.S. Citizenship and Immigration Services over a new rule governing the H-2A and H-2B guest worker visa programs.
Federation of Employers and Workers of America et al v. Mayorkas et al challenges a final rule issued by the Biden administration in December 2024 that went into effect Jan. 17, 2025. The rule, "Modernizing H-2 Program Requirements, Oversight, and Worker Protections ," allows DHS to blacklist employers for “illegal” fees paid by H-2 workers — fees that employers may not be aware of or have control over in other countries.
The rule also grants DHS authority to blacklist employers based on past violations of federal, state or local labor laws, even if those violations do not involve H-2 program participation.
The plaintiffs are seeking to have the rule vacated “because, among other things, it violates the Congressional Review Act by reviving a disapproved blacklisting rule and is arbitrary and capricious in violation of the Administrative Procedure Act — transforming DHS into a labor law enforcement agency beyond its intended role of determining non-immigrant admissibility,” according to a statement by FEWA.
“We want to stop this illegal rule and return DHS to its primary function of assessing H-2 visa eligibility, not enforcing labor laws,” said FEWA Chief Operating Officer Arnulfo Hinojosa.
Along with FEWA, the plaintiffs include the National Association of Landscape Professionals , the Outdoor Amusement Business Association , the Seasonal Employment Alliance and the National Council of Agricultural Employers . It was filed in the U.S. District Court for the Southern District of Texas.
Preparing for immigration enforcement raids Increased actions by Homeland Security Investigations means growers must be diligent to ensure paperwork and records are correct and accessible.
Preparation is crucial when it comes to an immigration worksite enforcement action. Even if you carefully verify the work authorization of all your employees, Homeland Security Investigations , a federal law enforcement agency within the U.S. Department of Homeland Security, may still investigate your workplace based on a lead, complaint or other factors, according to the American Immigration Lawyers Association .
If you do not have a worksite enforcement action plan in place, you should consult with a qualified immigration attorney to ensure you are prepared in the event of an unannounced federal law enforcement visit, the association cautions.
The American Immigration Lawyers Association provides these rights and responsibilities as guidelines, but always consult a qualified immigration attorney.
When any agency arrives at your worksite, immediately contact your attorney. Immigration officers are permitted to enter any public areas of your workplace, but they must have a valid search warrant or your consent to enter non-public areas. A valid warrant must be signed and dated by a judge. It will include a timeframe within which the search must be conducted, a description of the premises to be searched and a list of items to be searched for and seized. Send a copy of the warrant to your attorney. What to do in an immigration raid Employer rights: Write down the name of the supervising agent and the name of the U.S. attorney assigned to the case. Have at least one company representative follow each agent around the facility. The employee may take notes or film the officer. Note any items seized and ask if copies can be made before they are taken. If the agent does not allow you to make copies, you can obtain copies later. You are permitted to request reasonable accommodations. If agents are seizing a document that is vital to your operation, explain why it is vital and ask for permission to photocopy it before the original is seized. Agents are required to provide an inventory list of items seized. You may inform employees that they may choose whether to talk with federal agents, but do not direct them to refuse to speak to agents when questioned. Do not provide false or misleading information, falsely deny the presence of named employees or shred or otherwise obscure documents. Be mindful of the health and welfare of your employees. If an employee requires medication or medical attention, or if employees have children who need to be picked up from school, communicate these concerns to the federal agents. Employees’ rights Employees have the right to remain silent and the right to an attorney. Your employees do not need to answer questions about their immigration status, where they were born or how they entered the United States. If your employees are detained or taken into custody, assign someone to contact their family, and pay them any money owed for services.
F or more: aila.org
This article appeared in the March 2025 issue of Greenhouse Management magazine under the headline "Lawsuit challenges new H-2 visa rules."
