The National Association of Landscape Professionals, along with several allied organizations, filed a lawsuit on behalf of the H-2 community against the U.S. Department of Homeland Security (DHS) and U.S. Citizenship and Immigration Services (USCIS) over a new rule governing the H-2A and H-2B guest worker visa programs.
Federation of Employers and Workers of America et al. versus Mayorkas et al. challenges a final rule issued by the Biden administration in December 2024 that went into effect on Jan. 17, 2025. The rule, Modernizing H-2 Program Requirements, Oversight and Worker Protections, allows DHS to blacklist employers for illegal fees paid by H-2 workers — fees that employers may not be aware of or have control over in other countries, according to the NALP.
The rule also grants DHS authority to blacklist employers based on past violations of federal, state or local labor laws, even if those violations do not involve H-2 program participation.
NALP is joined in the lawsuit by the Federation of Employers and Workers of America, the Outdoor Amusement Business Association (OABA), the Seasonal Employment Alliance (SEA) and the National Council of Agricultural Employers (NCAE). It was filed in the U.S. District Court for the Southern District of Texas.
According to the NALP, the plaintiffs are seeking to have the rule vacated because, among other things, it violates the Congressional Review Act by reviving a disapproved blacklisting rule and is arbitrary and capricious in violation of the Administrative Procedure Act — transforming DHS into a labor law enforcement agency beyond its intended role of determining non-immigrant admissibility.
“This rule provides DHS with labor law oversight which Congress never intended, which is redundant and wasteful. More troubling is the liability imposed on employers and employees that are using the H-2B program the right way,” stated Andrew Bray, senior vice president, government relations and membership, NALP.
