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Maine Law Limiting H-2A Guestworkers Faces Appeals Court Test

Sept. 7, 2022, 9:15 AM

A federal appeals court is considering Maine’s attempt to limit the use of foreign guestworkers in the state in a case that tests the limit of states’ powers over federal visa programs.

The US Court of Appeals for the First Circuit will hear oral arguments Wednesday in an appeal from a lower court order that blocked a state law preventing H-2A agricultural guestworkers from hauling forestry products within the state.

The outcome could determine whether states can restrict the employment of people with guestworker visas that were approved by the federal government.

There aren’t currently any state laws in effect that specifically limit the use of foreign guestworkers where expressly allowed by federal law, said Joshua Viau, a partner at Fisher & Phillips LLP.

“Groups who have long sought to limit the use of the H-2A program are watching this case to see if the state regulation is a viable path to reduce the use of guest workers,” he said in an email.

The appeals court will likely find the state law is preempted by federal statute, said Leon Fresco, a partner at Holland and Knight LLP.

If not, the case “may open the door for other states who may decide to either have complete bans on certain visas, or even to insert higher wage requirements,” he said.

The appeals court is considering the issue as lawmakers in Washington hold talks over an immigration deal to overhaul the H-2A visa program. Demand for H-2A visas, which have no annual cap, has climbed steadily in recent years as farms have struggled to fill jobs with US workers.

Supply Chain Disruptions

Employers can seek H-2A visas to hire workers for temporary or seasonal jobs in the agricultural industry for a maximum of three years. To bring in those workers, companies must get Labor Department certification that no US workers are available to fill those jobs.

The Maine law bars employers that own more than 50,000 acres of forest land in the state from hiring or contracting an individual to haul forest products between two points within the state. State lawmakers have said employers’ preference for Canadians on the visas undermines the employment of American workers.

The Maine Forest Products Council sued, arguing that the law would cause severe supply chain disruptions in the industry. The law is also invalid because it discriminates against H-2A workers with no compelling reason to do so, and contradicts the Immigration and Nationality Act, the group argued.

“The federal H-2A program provides vital access to needed labor where federal authorities have determined no U.S. workers are available to fill the jobs at issue, including rural areas in Maine where the forest products industry operates,” Patrick Strauch, executive director of Maine Forest Products Council, said in a statement.

A US district court judge in February found that the council was likely to succeed in challenging the law and issued a preliminary injunction blocking it from taking effect. Maine Attorney General Aaron Frey and Forest Service Director Patty Cormier appealed that decision in March.

Because H-2A visa eligibility is conditioned on job availability and meeting qualifications under state and federal law, states can impose requirements on specific positions in an industry, they argued. The law also would apply only to future hires, mitigating concerns about canceled visas, they said in their appellate brief.

Some states have imposed citizenship or residency requirements for jobs in the past that are narrowly tailored to a government interest, said Kristie De Peña, vice president for policy and director of immigration at the Niskanen Center.

But the Maine law, if it takes effect, would be the first measure to limit workers employed under a federal temporary worker program, she said.

“It’s an interesting and timely legal question to answer, especially because there is still this predominant idea that a lot of immigrant workers are taking jobs away from Americans—despite the requirements for eligibility for H-2A workers to come to the US,” De Peña said.

A spokesperson for the Maine Department of Agriculture, Conservation and Forestry didn’t immediately respond to a request for comment.

The case is Maine Forest Products Council v. Cormier, 1st Cir., No. 22-01198, oral arguments scheduled 9/7/22.

To contact the reporter on this story: Andrew Kreighbaum in Washington at akreighbaum@bgov.com

To contact the editor responsible for this story: Laura D. Francis at lfrancis@bloomberglaw.com