By Bruce Buchanan

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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.