This article was prepared with the assistance of ABIL, the Alliance of Business Immigration Lawyers, of which Loan Huynh is an active member.
On November 27, 2024, the Department of Labor's (DOL) Office of Foreign Labor Certification (OFLC) announced court orders issued on November 25, 2024, by the Eastern District of Kentucky and Southern District of Mississippi associated with implementation of the 2024 Farmworker Protection Final Rule.
A preliminary injunction in the Kentucky case, Barton v. U.S. DOL, enjoins and restrains DOL from implementing, enacting, enforcing or taking any action in any manner to enforce certain provisions of the final rule. In the Mississippi case, a decision in International Fresh Produce Association v. U.S. DOL stays the effective date of certain regulations in the Farmworker Protection Rule nationwide until the conclusion of proceedings in the case, including any appellate proceedings.
DOL said it will issue "additional information and guidance on its ongoing compliance and implementation of these orders as soon as possible." Until that additional guidance is published, "as of November 27, 2024, employers (or an employer's authorized attorney or agent) will be directed on the Foreign Labor Application Gateway (FLAG) System to prepare and submit H-2A job orders and Applications for Temporary Employment Certification using the forms applicable under the version of 20 CFR part 655, subpart B in effect on June 27, 2024," DOL said.
Previously, the United States District Court for the Southern District of Georgia issued a preliminary injunction in Kansas U.S. DOL prohibiting DOL from enforcing the rule in certain states and with respect to certain entities. The affected states include Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Louisiana, Missouri, Montana, Nebraska, North Dakota, Oklahoma, South Carolina, Tennessee, Texas and Virginia. The entities include Miles Berry Farm and members of the Georgia Fruit and Vegetable Growers Association as of August 26, 2024. On August 28, 2024, and again on September 10, 2024, the Employment and Training Administration issued related announcements.
