DoL's Debarments Lists of Bad H-2A and H-2B Employers Get Longer

By David North on January 7, 2020

While it is hard to find good news on the immigration front, there is some, and this bit comes from the U.S. Department of Labor.

We have previously written that DoL (an alma mater of mine) rarely finds employers of foreign workers to have behaved so badly that they are kicked out of the program. The Department has the power to do that, banning specific employers from using the H-2A (farm) and H-2B (non-farm) work visa programs for periods of two, three, and sometimes five years.

The good news is that the often-abused H-2B program, frequently used by the landscaping industry, now has a much more active debarment program than the last time we looked, which was in September 2018. At that time, it had only four employers on the debarment list; now there are 21 of them.

Further, the debarments seem to be longer than I recall in the past, when one-year bans were sometimes used, as well as longer ones. Unless I missed something, neither the H-2A nor the H-2B debarments had anything shorter that a two-year ban on the current list.

Though statistical comparisons of the H-2A lists by year are not available, the H-2A tallies seem larger than in the past. The current list shows that 10 employers were placed on the list in calendar year 2017, 30 in 2018, and 33 in 2019.

I suspect that this reflects a slightly tougher stand on the part of DoL, not an improving pattern of behavior of the part of the employers.

Three noteworthy items:

First, a massive blueberry grower, Munger Brothers, has recently settled two major farm labor cases in which it was accused of mistreating and underpaying foreign workers; one of these was for $3.75 million in the State of Washington federal courts, and the other was for $3.5 million in the U.S. Courts in California.

In the latter case, DoL lawyers were in pursuit of the grower, and part of the settlement was an agreement by Munger Brothers not to seek foreign farm workers for three years. And that firm is now on the H-2A debarment list. Perhaps this is a part of a growing pattern; DoL has long had the power to add employers to the banned list on its own, without court involvement.

A second relates to a specific firm, perhaps the first on the H-2B list to be given a five-year suspension. It was referred to DoL regulators by the department's inspector general, an unusual source of cases. This is Clarke' s Landscaping and Lawn Care, Inc., of Telford, Pa.

Despite the constant cry that foreign workers are badly needed in the landscaping industry, I was pleased to find that the firm is still in business (with a handsome webpage) more than two years after they were blacklisted from the H-2B program. If Clarke's can cut your lawn without importing workers from abroad, maybe others in the business can too.

In the third, DoL, earlier this year, finally started an H-1B debarred list. There are 11 names on it, all apparently small outfits. It can be seen here.

The full text of the multi-page H-2A and H-2B debarment lists can be seen here.