Lawsuit challenges new H-2 visa rules

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.