Administrative Judge Stifles Long-Standing FLC Rules
March 10, 2022
By Tom Bortnyk, Sr. Vice President and General Counsel for másLabor
Last week, the industry scored a major victory against the Office of Foreign Labor Certification (OFLC)’s long-standing rules governing Farm Labor Contractors (FLCs) participating in the H-2A non-immigrant visa program. For those who are not familiar, OFLC is the agency within the U.S. Department of Labor (DOL) that administers the H-2A labor certification process, a precursor to employers petitioning the government for H-2A visas.
In her brief (but potent) ruling in Matter of: Hillenmeyer Landscape Services, Administrative Law Judge Angela Donaldson of the Board of Alien Labor Certification Appeals (BALCA) held that OFLC’s policy is “not legally sound,” and that its requirements were “superfluous” in light of the plain language of the regulatory text.
Historically, OFLC required FLCs to furnish a litany of documents during the H-2A filing process, all under the guise of enforcing legal requirements under the Migrant and Seasonal Agricultural Worker Protection Act (MSPA). The required documents included current, valid FLC and FLCE certificates of registration, with transportation authorization (vehicles, drivers) sufficient to transport the full number of requested H-2A workers.
Due to unprecedented backlogs at the Wage and Hour Division (WHD) processing office in San Francisco, however, producing such documents is easier said than done. In fact, recent assessments by WHD indicated that there is a nearly 17-week backlog in processing renewals. To cope with this backlog, the agency devised a new “Authority to Operate” letter that confirms receipt of the FLC and FLCE renewal applications and purports to authorize the FLC to continue operating while WHD processes the renewal.
If you think the government’s problems are bad, wait until you see their solutions. This “elegant” solution on paper quickly became a bureaucratic disaster of its own right, with the agency running woefully behind on issuing the “Authority to Operate” letters. Worse yet, the existence of these letters (on paper anyway) gave OFLC a compelling excuse to deny H-2A applications for FLCs who failed to produce the letter, despite their timely renewals.
This is precisely the situation our client faced when we decided to challenge the legality of OFLC’s rules. Our strategy was multi-faceted: First, we built in a “safety net” by having our client secure a common carrier. Common carriers are exempt from MSPA, therefore using common carriers to transport workers circumvented OFLC’s transportation authorization requirements. Second, we attacked OFLC’s authority over MSPA in the first place, arguing that OFLC exceeded its statutory and regulatory authority. Third, we argued that the “Authority to Operate” letters were a fiction – that timely renewal of an FLC or FLCE certificate triggered an extension by operation of law, and that the letter was therefore redundant and unnecessary.
In a clean sweep, Judge Donaldson agreed on all three points. In doing so, she delivered a knock-out punch to OFLC’s ability to stonewall H-2A applications over missing or incomplete FLC or FLCE certificates. This ruling gives FLCs much-needed breathing room to cope with WHD’s systemic delays and avoids costly denials in the H-2A process over paperwork that is, for the most part, entirely outside of their control.
It is too early to know the practical implications of this ruling. With any luck, the H-2A program just became a bit easier for FLCs. It is likely, however, that OFLC will attempt to “forum shop” the issue to a different judge, hoping to obtain a different outcome. It is possible they will succeed. For now, FLCs everywhere should celebrate the reprieve. This ruling is a refreshing reminder that due process and the rule of law still exists in this country.
You can read the full ruling HERE.
Tom Bortnyk is the Sr. Vice President and General Counsel for másLabor, the nation’s leading provider of comprehensive H-2A services. másLabor litigated the Hillenmeyer case on the employer’s behalf.