Judge upholds WHD debarment of three companies from H-2A visa program
Posted November 23, 2015
A federal administrative law judge (ALJ) upheld the findings of a U.S. Department of Labor Wage and Hour Division (WHD) investigation that led to the debarment of a Volga, South Dakota, dairy farmer and an Aberdeen, South Dakota-based employment agency from a program that allows employers to hire temporary foreign labor for agricultural work. The judge also agreed that the dairy farmer owed $38,173 in wages to 15 U.S. workers after the domestic employees received lower earnings than the foreign workers.
The dairy farm and the employment agency as well as its operations manager have been debarred from the H-2A temporary worker visa program for falsifying documents to employ temporary foreign agricultural workers on a year-round basis. A company that was established by the owners of the dairy farm to circumvent visa program rules has also been included in the debarment order. The employment agency operations manager and the two businesses have been debarred from the federal temporary employment program for three years.
Under the terms of a consent agreement, the dairy farm and the company it created to evade visa program rules, paid back wages to U.S. workers who were paid a lower wage for the same job as the temporary foreign workers. The company also paid a civil money penalty of $11,827 for violating provisions of the H-2A program. The ALJ approved this agreement on November 26, 2014.
The H-2A temporary agricultural program allows agricultural employers who anticipate a shortage of domestic workers to bring nonimmigrant foreign workers to the U.S. to perform agricultural labor of a temporary or seasonal nature.
According to the WHD, the dairy farm needed workers for year-round, nonseasonal dairy duties, which are not qualified for the H-2A program. Investigators found that the business created a second company, so that it could hire workers on a seasonal basis and then transfer them between the two companies to create the appearance of meeting the requirements of temporary employment. The WHD said the employment agency and its operations manager knowingly assisted the dairy operation in filing misleading applications with the federal program.
The South Dakota dairy employed the workers in 2011 and 2012.
Before the U.S. Citizenship and Immigration Services can approve an employer's petition for H-2A visa workers, an employer must file an application with the department stating that there are not sufficient workers who are able, willing, qualified and available, and that the employment of nonimmigrant, temporary workers will not adversely affect the wages and working conditions of similarly employed U.S. workers. The law provides for numerous worker protections and employer requirements with respect to wages and working conditions that do not apply to nonagricultural programs.
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