In a significant legal victory, Western Growers’ Senior Vice President and General Counsel, Jason Resnick, successfully challenged the denial of an H-2A application on behalf of Morrison Chopping, LLC. The decision by the United States Department of Labor’s Board of Alien Labor Certification Appeals (BALCA) to reverse and remand the final determination is a welcome development where such victories are hard won.
Background of the Case
Morrison Chopping, LLC, an employer engaged in custom combining operations, utilizes Western Growers’ H-2A Services. In this case, they were seeking certification for a Farm Equipment Mechanic and Service Technician position. The application, initially filed on May 3, 2024, requested temporary labor certification for one job opportunity, with duties including the diagnosis, adjustment, repair, installation, and maintenance of farm equipment. Despite responding to two Notices of Deficiency (NOD) from the Certifying Officer (CO), the application was denied on June 25, 2024, due to unresolved deficiencies.
Key Deficiencies and Appeal
The primary issues cited in the denial were the inclusion of multiple Areas of Intended Employment (AIE) and the failure to provide a Farm Labor Contractor (FLC) certificate of registration, as required by the Migrant and Seasonal Agricultural Worker Protection Act (MSPA). The CO argued that Morrison Chopping’s application contained non-custom combining duties and listed worksites in different Metropolitan Statistical Areas (MSAs), thereby necessitating separate applications for each AIE.
In response, Morrison Chopping asserted its exemption from MSPA requirements due to its status as a custom combine operation. The company argued that it was authorized to file a single application covering multiple AIEs based on a planned itinerary, as per the Department of Labor’s Training and Employment Guidance Letter (TEGL) No. 16-06. Additionally, the company allowed for the modification of job duties to remove tasks not performed by the harvester.
BALCA’s Decision
Administrative Law Judge Francine L. Applewhite found that the CO’s denial was arbitrary and capricious, reversing the decision and remanding the case for further consideration. Judge Applewhite emphasized that the CO failed to adequately address Morrison Chopping’s status as a custom combining operation and its exemption from certain regulatory requirements.
The ruling acknowledged Morrison Chopping’s exclusive engagement in custom combining and their successful filing of approximately ten H-2A applications since 2023. Judge Applewhite noted that the employer’s explanation of the skills required for custom combining operations and authorization to remove non-harvesting job duties demonstrated compliance with H-2A regulations.
Implications for H-2A Employers
This decision highlights the importance of understanding the nuanced regulatory landscape governing H-2A applications. Employers engaged in custom combining and other specialized agricultural operations are subject to special rules exempting them from certain requirements. The ruling serves as a reminder that it is important to challenge DOL’s Office of Foreign Labor Certification when they issue notices of deficiencies or denials that are contrary to the plain language of the H-2A regulations.
Western Growers remains committed to supporting its members in navigating the complexities of H-2A labor certification processes.