United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT Argued May 11, 2018 Decided August 17, 2018 No. 17-5202 HISPANIC AFFAIRS PROJECT, ET AL., APPELLANTS v. R. ALEXANDER ACOSTA, IN HIS OFFICIAL CAPACITY AS UNITED STATES SECRETARY OF LABOR, ET AL., APPELLEES Appeal from the United States District Court for the District of Columbia (No. 1:15-cv-01562) Dermot Lynch argued the cause for appellants. With him on the briefs was William W. Taylor, III. Heather Sokolower, Trial Attorney, U.S. Department of Justice, argued the cause for appellees. With her on the brief was Erez Reuveni, Assistant Director. Christopher J. Schulte was on the brief for intervenors aligned with defendants-appellees, Western Range Association and Mountain Plains Agricultural Service. Before: GARLAND, Chief Judge, and SRINIVASAN and MILLETT, Circuit Judges. 2 Opinion for the Court filed by Circuit Judge MILLETT. MILLETT, Circuit Judge: For all the pastoral images it may invoke, tending to a flock is no easy task. Livestock herders often spend months at a time living in makeshift campsites on a remote range, on call twenty-four hours a day to protect the herd. Given the spartan and isolated working conditions, the sheep and goat industries have become almost wholly dependent on foreign labor to work as herders. Many of these foreign workers come to the United States on what are known as H-2A visas, which allow nonimmigrants to enter to perform certain agricultural work. By law, H-2A visas may issue only if the employer’s need for the worker is temporary or seasonal. But time and again, federal agencies have allowed ranchers to employ foreign herders on H-2A visas for year-round, non-seasonal work that lasts up to three years at a stretch. The Hispanic Affairs Project, a membership organization of herders, and four individual herders challenge those agencies’ 364-day certification period for H-2A visas as unmoored from the reality of herders’ employment, and the agencies’ allegedly persistent pattern of routinely extending “temporary” visas to meet ranchers’ anything-but-temporary need for herders. They also challenge a number of additional regulatory measures, including the minimum wage required for herders. We hold that the challenge to the policies pertaining to the certification and automatic extension of H-2A visas can go forward, but we otherwise affirm the district court’s dismissal of the plaintiffs’ claims. 3 I A Dubbed “H-2A,” Section 1101(a)(15)(H)(ii)(a) of the Immigration and Nationality Act defines qualifying “nonimmigrant[s]” as those “having a residence in a foreign country” with “no intention of abandoning [it],” and who come to the United States “to perform agricultural labor or services * * * of a temporary or seasonal nature.” 8 U.S.C. § 1101(a)(15)(H)(ii)(a) (emphasis added). H-2A-visa holders have no independent route to apply for permanent residency or legal citizenship. Instead, they are dependent on their visa sponsors to lawfully stay in and return to the United States for work. See 20 C.F.R. § 656.16 (only employers can opt to apply for a permanent labor certification for herders, which can lead to residency and citizenship). The Department of Homeland ...
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