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Chinese Immig. Daily
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By Bruce Buchanan
After previously finding that Estopy Farms discriminated against a U.S. citizen in favor of individuals with H-2A visas, the Office of Chief Administrative Hearing Officer (OCAHO) issued the employer the maximum penalty of $3,200. See U.S. v. Estopy Farms, 11 OCAHO no. 1256 (2015).
Estopy Farms, which is in the business of harvesting cotton, sought employment of non-immigrant workers to perform agricultural labor - “cotton machine operators” - of a temporary nature through the H-2A program. An employer must receive a certification from the U.S. Department of Labor, that there are insufficient American workers to perform the work, and it may not reject individuals based on criteria not listed on the original petition or job order.
Enrique Romero, a U.S. citizen, applied for the job and had 14 years experience in operating agricultural equipment. Romero was not hired; instead, all of the employees hired were H-2A visa holders. In its prior decision, OCAHO found Estopy Farms discriminated against Romero.
In the present matter, the Office of Special Counsel (OSC) sought the maximum penalty of $3,200 because the employer knew the law from prior use of H-2A visas, was uncooperative, and “committed an egregious statutory violation that resulted in significant harm.” Although the statute does not specify factors to consider in assessing the penalty, case law has considered the following factors: the egregiousness of the violations, the harm resulting from the discrimination, the employer’s resistance to OSC’s investigation, noncompliance with court orders, and the employer’s familiarity with the law involved.
OCAHO agreed with OSC’s assessment; accordingly, OCAHO assessed the maximum penalty of $3,200 and issued a cease and desist order.
This decision shows the cost of violating the law in attempting to bypass U.S. citizens in the operation of an H-2A program. It is important to retain qualified immigration counsel when seeking employees through the H-2A program.
By Bruce E. Buchanan
An employer discriminated against a U.S. citizen and favored individuals with an H-2A visa, according to OCAHO’s decision in U.S. v. Estopy Farms, 11 OCAHO no. 1252 (2015).
Estopy Farms sought employment of non-immigrant worker to perform agricultural labor of a temporary nature. In order to hire individuals under the H-2A program, an employer must receive a certification from the U.S. Department of Labor (DOL), that there are insufficient American workers to perform the work. For the DOL to issue such a certification, an employer must advertise the positions and may not reject individuals based on criteria not listed on the original petition or job order.
In this case, Estopy Farms, which in the business of harvesting cotton, filed a request to hire 14 H-2A workers as “cotton machine operators.” The request did not include any requirement that the applicants have prior experience.
Enrique Romero, a U.S. citizen, applied for the job and had 14 years experience in operating agricultural equipment. Romero appeared to have been hired at his interview in that he was informed that he would be informed of the job’s start date. Despite calling Estopy Farms on several occasions, Romero was not hired; instead all the employees hired were H-2A visa holders.
After filing a charge with the Office of Special Counsel for Immigration – Related Unfair Employment Practices (OSC), Romero was granted permission by the OSC to file a complaint with OCAHO alleging citizenship discrimination. The OSC intervened in the case before OCAHO. Interestingly, Romero settled a similar case filed in federal district court and moved that his OCAHO compliant be dismissed. OCAHO granted that order but OSC decided it wanted to pursue the OCAHO case as “guardian of the public interest.”
In its defense, Estopy Farms stated it failed to hire Romero because he did not have any experience operating “cotton picker harvester machines.” However, Estopy Farms’ advertisement did not include the need for prior experience or certain qualifications. At least two of the H-2A visa holders hired did not have any prior experience.
Based on the facts and Estopy Farms providing a series of “shifting, inconsistent, and mutually contradictory explanations” concerning why it failed to hire Romero, OCAHO found Estopy Farms’ defenses were pretextual. OCAHO further found Estopy Farms discriminated against a qualified U.S. citizen in favor of hiring H-2A workers. The amount of civil penalties will be decided in further proceedings.
This decision shows that if one advertises for workers, it must make its hiring decisions based on the advertisement’s requirements, not on other factors. In this case, it appears Estopy Farms only wanted to hire H-2A visa holders and created reasons not to hire non-H-2A visa holders.