Seso Legal Team Prevails in H-2A Appeal

On September 3, 2024, Seso’s In-house Legal Team notched a major win against the U.S. Department of Labor’s Office of Foreign Labor Certification (“DOL”) in an appeal before the Board of Alien Labor Certification Appeals (“BALCA”) that turned on whether the employer, Greenwell Farms (“Greenwell”), a fourth-generation coffee grower located in the Kona region of Hawaii, had established eligibility to participate in the H-2A program [1]. At stake was not only Greenwell’s current season, but also its ability to utilize the program in future years, after its temporary labor certification application was denied on the grounds that minor deviations from its established season demonstrated a permanent year-round need, rather than a temporary/seasonal need, based on its aggregated dates of need in its applications.

After receiving the Certifying Officer’s (“CO”) Notice of Deficiency (“NOD”) which required Greenwell to submit an explanation and documentation to support its seasonal or temporary need to support its pending application, Barron Dickinson, Legal Affairs Counsel, and Daniel Ross, Legal Affairs Counsel & H-2A Compliance Attorney, of Seso’s Legal Team determined that the CO’s NOD had all the hallmarks of a forthcoming denial based on their many years of combined experience litigating against the DOL in some of the most high profile cases on behalf of H-2A employers. With the prospect of a denial on the horizon, a strategic decision was made to submit a comprehensive response to the NOD in the form of a quasi-brief that included relevant case authority and several different forms of documentary evidence, including an expert letter from the University of Hawaii’s College of Tropical Agriculture & Human Resources attesting to Greenwell’s seasonality, payroll records demonstrating an almost 300% increase in its labor needs during certain months, and annual reports from Hawaii’s Department of Agriculture highlighting unforeseen adverse crop conditions that caused earlier than normal harvest and affected production cycles for local coffee farmers.

As predicted, the CO ultimately issued a denial letter on the grounds that “[t]he employer’s response indicates that they have a revolving temporary need yearly...[and] the employer’s [filing history] shows that they have a need in every single month of the year to include a need of 10 months and 15 days in the year 2024.” The proactive approach employed by Seso’s Legal Team at the NOD stage effectively allowed for a Request for Expedited Administrative Review to be filed immediately with BALCA (which requires the appeal to be decided on a truncated timeframe) and forgo the need to proceed to a formal hearing before the presiding Administrative Law Judge (“ALJ”) unlike a Request for De Novo Review. This strategy ultimately paid off with the issuance of a favorable decision by ALJ Patrick Rosenow reversing the denial of Greenwell’s application based on his conclusion that the CO’s offered rationale was arbitrary, capricious, and an abuse of discretion. Noting that the CO’s complete failure to properly consider the NOD Response and supporting documentation, Judge Rosenow instead confirmed the temporary and seasonal nature of Greenwell’s need for labor.

As a result of the joint efforts of Greenwell’s leadership and Seso’s Legal Team, the 175-year old coffee plantation was able to receive the H-2A workers that it critically needs to timely complete its necessary operational activities. In addition to affording Greenwell far greater certainty with respect to its ability to access the H-2A program in the future, this decision also highlights the importance for employers to adhere to their established 10-month season as well as explain even minor shifts in their historical dates of need with supporting documentary evidence to minimize the likelihood of a denial being issued. Over the years, the issue of whether employers located in states with arguably year-round growing climates, like Hawaii and Florida, can establish a temporary or seasonal need for labor, an issue that has been hotly contested in BALCA appeals in recent years [2]. Employers with job opportunities in these states should continue to exercise caution when filing their applications as the DOL applies a heightened-level of scrutiny to the filings of employers located in those states. Although the employer in this case received a favorable outcome, BALCA decisions reversing a denial are never guaranteed as the majority of appeals generally result in a rubber stamp. For example, only 8 out of 64 appeals (roughly 12%) filed with BALCA this year have resulted in reversals. Seso’s longstanding record of successfully resolving issues at the NOD stage with finality ensures that clients are able to avoid delays in the certification process and their workers’ arrivals. Notwithstanding, in the event that you find yourself facing a situation similar to this case, rest assured that Seso’s Legal Team has the subject matter expertise to zealously advocate on your behalf before BALCA if called upon to do so.

Should you have any questions or concerns regarding the issues presented in this case or how they might impact your own operational needs, please do not hesitate to reach out to us. We would Additionally, be on the lookout for Seso’s upcoming webinars later this year.

1. Greenwell Farms, Inc., 2024-TLC-00056 (Sept. 3, 2024).

2. See, e.g. Overlook Harvesting Company, LLC , 2021-TLC-00205 (Sept. 9, 2021), Sec’y assumed juris. (Sept. 30, 2021 ), Sec’y juris. withdrawn (Dec. 3, 2021); see also H–2A Frequently Asked Questions Guidance—Round 17: Temporary or Seasonal Need Assessments; Relevant Information or Factors Related to H–2A Labor Contractors Operating in an Area of Intended Employment Where Agricultural Production May Occur Year-Round , 87 Fed. Reg. 185 (Sept. 26, 2022) (remains
pending after over two years).