UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA MIGUEL GARCIA, et al., Plaintiffs, v. Civil Action No. 18-1968 (RDM) R. ALEXANDER ACOSTA, et al., Defendants. MEMORANDUM OPINION AND ORDER The Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101 et seq., permits employers to hire temporary foreign workers “to perform agricultural labor or services” in the United States. 8 U.S.C. § 1101(a)(15)(H)(ii)(a). To hire a temporary foreign worker under this program—known at the H-2A visa program—an employer must petition the Secretary of Labor “for a certification that [1] there are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed,” to perform the work, and, “[2] the employment of the alien in such labor or services will not adversely affect the wages and working conditions of workers in the United States similarly employed.” Id. § 1188(a). As required by the INA, the Secretary of Labor has promulgated implementing regulations to govern the “process by which the Department of Labor” issues such certifications. 20 C.F.R. § 655.103(a); see also id. § 655, subpart B (regulations governing H-2A visa program). These regulations require, among other things, that “employer[s] . . . offer, advertise in [their] recruitment, and pay a wage that is the highest of” four wage measures specified in the regulations. Id. § 655.120(a); see also id. § 655.122(l)(1). At issue in this case is one of those four measures known as “the prevailing hourly wage.” Id. § 655.120(a). Plaintiffs—four agricultural workers and a farmworkers labor union—bring this action against the Secretary of Labor and the Department of Labor (collectively, “the Secretary”) under the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq. They allege that the Secretary has a policy and practice of certifying employers to hire H-2A workers at wages lower than the applicable prevailing wages, see, e.g., Dkt. 1 at 15 (Compl. ¶ 57), and they challenge the grant of five specific certifications, see id. at 14–15 (Compl. ¶¶ 51–53). Plaintiffs contend that the Secretary’s policy and practice of granting certifications that fail to comply with the existing regulations constitutes a de facto amendment to the regulations, without observance of the APA’s notice and comment procedures, and that this policy and practice and the Secretary’s decision to issue the five specific certifications is arbitrary and capricious and contrary to the Department’s own regulations. The matter is before the Court on Defendants’ motion to dismiss for lack of subject- matter jurisdiction, or, in the alternative, to transfer the case to the U.S. District Court for the Northern District of Illinois or to stay the case. Dkt. 9. Defendants argue that the case should be dismissed because Plaintiffs’ challenges to the five specific certifications are moot and their policy and practice claims are unripe. Id. at 17–22. If the Court declines to dismiss the action, Defendants request that the Court transfer the case to the Northern District of Illinois—where the Department of Labor’s Chicago National Processing Center is ...
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