NALP Lawsuit Challenges DHS Over New H-2 Visa Rules and Employer Penalties

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Key Takeaways

• NALP filed a lawsuit on February 17, 2025, challenging DHS’s new H-2 visa rule effective January 17, 2025.
• The rule expands DHS authority, adds blacklisting criteria, removes the annual eligible countries list, and increases penalties on employers.
• Employers must comply with ongoing rules during litigation, while the lawsuit’s outcome may redefine DHS’s role in visa regulation.

The National Association of Landscape Professionals (NALP), alongside several other groups, has taken legal action against the Department of Homeland Security (DHS) over new changes to H-2 visa regulations. The lawsuit, titled Federation of Employers and Workers of America et al v. Mayorkas et al, was filed on February 17, 2025, in the U.S. District Court for the Southern District of Texas. The dispute revolves around a final rule issued by the Biden Administration in December 2024, which became effective on January 17, 2025. This lawsuit could have wide-reaching effects for industries that rely on temporary foreign workers.

The groups joining NALP in this lawsuit include the Federation of Employers and Workers (FEWA), the Outdoor Amusement Business Association (OABA), the Seasonal Employment Alliance (SEA), and the National Council of Agricultural Employers (NCAE). These organizations argue that the new rule under the title “Modernizing H-2 Program Requirements, Oversight, and Worker Protections” significantly disrupts the H-2 visa programs for temporary foreign workers. According to the plaintiffs, the rule improperly widens the responsibilities of DHS to include enforcement of labor law violations. Under its new provisions, DHS can blacklist employers for improperly paid worker fees or past labor law violations, even when the violations are unrelated to visa programs or were committed at the state or local level.

NALP Lawsuit Challenges DHS Over New H-2 Visa Rules and Employer Penalties

One of the key arguments from NALP and its allies is a claim that the rule violates the Congressional Review Act by effectively reviving a disapproved blacklisting rule. They also assert that the rule is “arbitrary and capricious,” breaching the Administrative Procedure Act. FEWA’s Chief Operating Officer, Arnulfo Hinojosa, framed the issue in stark terms, stating that, “We want to stop this illegal rule and return DHS to its primary function of assessing H-2 visa eligibility, not enforcing labor laws.” This highlights the position of the plaintiffs: they believe DHS is overstepping its primary immigration and visa approval role to take on regulatory functions that belong to other federal or state agencies.

Among the changes brought by the new rule is a striking expansion of what constitutes grounds for blacklisting employers. Employers can now face blacklisting for paying, or merely being associated with, improper foreign recruitment fees. Additionally, new penalties for program violations have been introduced. These measures apply broadly to H-2A and H-2B visas, which cater to temporary workers in agriculture and non-agriculture sectors, respectively. While the intent of these changes is to strengthen worker protections, opponents claim they impose overly tough restrictions on employers already following complex federal regulations.

Another controversial change is the removal of the annual eligible countries list for the H-2 programs, which previously outlined which countries’ nationals could participate in these programs. Under the new rule, businesses can recruit workers from any country, which DHS believes simplifies the process. However, this change has sparked concern among the plaintiffs, who say it could make program compliance more difficult.

New flexibilities for workers were also introduced. For instance, H-2 workers are now eligible for benefits previously only available to H-1B visa holders, such as a 60-day grace period for finding new employment and automatic extensions of work authorization during extension requests. Though these changes aim to provide more flexibility for workers, employers argue that their own administrative burdens have grown under the new rule.

The changes also affect the broader landscape of visa availability. On December 2, 2024, DHS and the Department of Labor issued a temporary rule increasing the H-2B visa cap by 64,716 additional visas for fiscal year 2025. This measure aimed to alleviate labor shortages in industries like landscaping, seasonal businesses, and agriculture. The new visas were released in phases throughout FY 2025, with allocations tied to specific timeframes. For example, 20,716 visas were reserved for returning workers in the first half of the fiscal year, and USCIS announced on January 10, 2025, that the cap for this allocation had already been reached.

Later in the fiscal year, smaller sets of H-2B visas were distributed, including an allocation of 5,000 visas for returning workers from May 15 to September 30, 2025. Additionally, 20,000 visas were specifically reserved for workers from countries such as El Salvador 🇸🇻, Guatemala 🇬🇹, Honduras 🇭🇳, and others, aiming to promote labor migration from specific regions. While this expansion was welcomed by industries experiencing staff shortages, it is clear that it makes an already complex system even more intricate.

The lawsuit hinges on whether DHS has overreached its authority. Supporters of the legal challenge argue that DHS should focus on immigration-related tasks, such as screening H-2 applicants, rather than taking on responsibilities linked to enforcing labor regulations. Critics believe that the added responsibilities have unintentionally blurred lines between immigration enforcement and broader labor law jurisdiction.

For employers participating in the H-2 visa programs, uncertainty remains high as the new rules are active while the lawsuit runs its course. Employers must immediately comply to avoid fines or blacklisting. Some worry that DHS’s expanded authority will inevitably lead to mistakes, frustration, and delays in their ability to hire the workers they need. Industries like landscaping and agriculture, which rely on the H-2 program to combat chronic labor shortages, will likely remain vocal stakeholders in this dispute.

On the flip side, worker advocates tend to support the newer rules, viewing them as overdue reforms that prioritize the rights and treatment of foreign workers. Protections like the ability to report abuses without fear of retaliation (“whistleblower protections”) and flexible work transitions could help address historical grievances about exploitation in the H-2 programs.

The outcome of the lawsuit could set a crucial precedent for how immigration programs are managed in the U.S. Should the plaintiffs succeed, DHS may need to roll back these rules, forcing it to re-evaluate how it balances the needs of employers and workers while managing immigration. However, if the rule is upheld, DHS could entrench its expanded role, which some see as necessary for greater accountability in temporary worker programs.

For now, employers and workers are advised to monitor ongoing developments closely and ensure full compliance with the existing legal framework. Employers, in particular, may benefit from reviewing DHS guidelines and consulting legal experts to align with these new regulations. Official updates on the H-2 visa programs can be reviewed on the USCIS H-2 Temporary Worker Program page.

As this case unfolds, it underscores the challenges of maintaining productive immigration systems for temporary workers, balancing workforce demands, and safeguarding worker protections. The NALP-led lawsuit has the potential to reshape how the H-2 programs operate, with implications for every sector that relies on temporary foreign labor to fill essential job roles. Both employers and workers await clarity on this contested rule, recognizing that its final outcome could influence immigration policy for years to come.

Learn Today

H-2 Visa → A U.S. visa category allowing temporary foreign workers for agricultural (H-2A) and non-agricultural (H-2B) jobs.
Blacklist → A formal list of individuals or organizations barred from participating in specific activities due to violations or misconduct.
Congressional Review Act (CRA) → A U.S. law allowing Congress to overturn certain federal agency regulations through a joint resolution.
Administrative Procedure Act (APA) → A law governing how federal agencies develop and enforce regulations, ensuring fairness and public participation.
Whistleblower Protections → Legal safeguards for individuals who report violations or misconduct, protecting them from retaliation by employers or organizations.

This Article in a Nutshell

A legal battle unfolds as NALP and allies sue DHS over new H-2 visa rules, claiming overreach in enforcing labor laws. The rule, effective January 2025, increases employer penalties and reshapes visa processes, sparking debate. The outcome could redefine U.S. immigration policies, deeply impacting industries reliant on temporary foreign workers.
— By VisaVerge.com