United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT Argued February 4, 2021 Decided June 25, 2021 No. 20-5163 OVERDEVEST NURSERIES, L.P., APPELLANT v. MARTIN WALSH, 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. 1:18-cv-01347) Monte B. Lake argued the cause for appellant. With him on the briefs was Christopher J. Schulte. Aaron S. Goldsmith, Trial Attorney, U.S. Department of Justice, argued the cause for appellees. On the brief were Jeffrey Bossert Clark, Acting Assistant Attorney General, Glenn M. Girdharry, Assistant Director, and Matthew J. Glover, Senior Counsel to the Assistant Attorney General. Before: SRINIVASAN, Chief Judge, WILKINS, Circuit Judge, and SILBERMAN, Senior Circuit Judge. Opinion for the Court filed by Circuit Judge WILKINS. 2 WILKINS, Circuit Judge: Appellant Overdevest Nurseries, L.P. (“Overdevest”), is a plant nursery based in New Jersey. Overdevest has participated in the H-2A program since 1999, which allows it to bring in qualified foreign workers on temporary visas when there is a lack of qualified U.S. workers. In 2016, the Department of Labor determined that Overdevest had violated regulations governing the H-2A program. Overdevest challenged the regulations in District Court, arguing that they were an impermissible interpretation of the statute and were arbitrarily promulgated and enforced against Overdevest. The District Court granted the Department of Labor’s motion for summary judgment. We now affirm the District Court. I. The United States has long provided temporary work authorization for foreign agricultural workers. Often facing a shortage of U.S. workers willing to perform agricultural work, the United States brings foreign agricultural workers temporarily to the United States. The Immigration and Nationality Act (“INA”), 8 U.S.C. §§ 1101–1537, has governed temporary work authorization since 1952. Under the INA, employers may temporarily hire foreign workers “when there are not enough qualified and available American workers to fill open jobs” through the H-2A program. Mendoza v. Perez, 754 F.3d 1002, 1007 (D.C. Cir. 2014); see also 8 U.S.C. § 1101(a)(15)(H)(ii)(a). To participate in the H-2A program, an employer must first certify to the Secretary of Labor that: A. 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 labor or services involved in the petition, [“subsection A”] and 3 B. 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 [“subsection B”]. 8 U.S.C. § 1188(a)(1)(A)–(B). Only after the Department of Labor (“Department”) has certified the petition can the employer petition the Department of Homeland Security to designate foreign workers as H-2A workers. Mendoza, 754 F.3d at 1007. Congress directed the Secretary of Labor (“Secretary”) to promulgate regulations that would set the parameters of the program, particularly for temporary workers coming “to perform agricultural labor or services.” 8 U.S.C. § 1101(a)(15)(H). Pursuant to this authority, the Secretary promulgated regulations to …
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