H-2A Win: DOL Confirms U.S. Workers Only Are Entitled to Corresponding Employment Protections

In late May 2025, the U.S. Department of Labor’s Administrative Review Board (“ARB”) dealt a major blow to the Wage & Hour Division’s (“WHD”) longstanding enforcement policy. The policy sought to expand the scope of H-2A employers’ obligations to U.S. workers engaged in employment corresponding to foreign nationals employed on non-H-2A temporary employment visas by reaffirming that only U.S. workers are covered (WHD v. Ten West Cattle, Inc., ARB Nos. 2023-0058, 2024-0003 (May 29, 2025). Over the course of a 7-year litigation history, WHD has continued to pursue civil monetary penalties and back wages against the H-2A employer, a feed lot operator, for allegedly failing to pay the AEWR to a number of trainees and interns hosted by the employer through the J-1 visa program on the grounds that they were engaged in corresponding employment with the H-2A workers. 

In ruling against WHD, ARB concluded that only U.S. workers may be engaged in "corresponding employment" with H-2A workers relying upon the legislative history of the H-2A program and DOL’s own published guidance to the stakeholder community in years prior which made clear that only U.S. workers receive the benefit of corresponding employment protections. Further, ARB concluded that since the J-1 program regulations do not authorize participants to engage in any employment whatsoever, but rather merely training, J-1 visa holders do not meet the H-2A program’s definition of a “U.S. worker.” H-2A program regulations specifically define a “U.S. worker” as “[a]n individual who is not an unauthorized alien…with respect to the employment in which the worker is engaging.” Absent proper employment authorization, an alien does not receive the protections afforded to U.S. workers via the H-2A program, including the AEWR. 

Importantly, in a concurring opinion, one of the ARB’s ALJ panel members described WHD’s actions in this litigation as “egregious” and it “put policy ahead of fairness.” The concurrence even goes as far as to conclude that the H-2A employer should be entitled to recover its attorney’s fees and costs under the Equal Access Justice Act (“EAJA”), which requires a government agency to reimburse a prevailing employer for its litigation costs unless it can establish that its position was substantially justified or other grounds exists that would make such a fee award unjust. As a result, the concurrence potentially opens the door for H-2A employers to recover their fees in future WHD enforcement proceedings. 

About two weeks following ARB’s issuance of Ten West, WHD voluntarily dismissed its appeal to ARB of another H-2A enforcement action that resulted in a substantially adverse decision involving TN visa holders who WHD had alleged were engaged in corresponding employment in the case of O’Bryan Composting LLC, 2023-TAE-0005 (Feb. 5, 2025) (Order Dismissing Alleged Violations Pertaining to TN Workers Due to Lack of Jurisdiction), appeal dismissed, Administrator, Wage and Hour Div., USDOL v. O'Bryan Composting, LLC, ARB No. 2025-0052, ALJ No. 2023-TAE-00005 (Jun. 18, 2025). In the underlying appeal, the ALJ dismissed all violations levied by WHD against the H-2A employer pertaining to its employer of TN visa program participants due to a lack of subject matter jurisdiction. The TN visa program allows Canadian and Mexican citizens to work in the United States in prearranged, professional-level jobs under the U.S.-Mexico-Canada Agreement (USMCA) (formerly NAFTA). Similar to the J-1 visa holders in Ten West, WHD alleged the TN visa workers were engaged in corresponding employment with the employer’s H-2A workers. However, unlike the H-2A program, the Secretary of Labor does not have oversight authority of the TN visa program and since the underlying validity of their visas and terms of their employment is a necessary component of a corresponding employment analysis, the ALJ had no authority to adjudicate WHD’s allegations therefore mandating a dismissal. 

Takeaway for H-2A Employers: 

These two recent decisions provide H-2A employers with long overdue clarity regarding their rights and obligations with respect to the employment of J-1 and TN visa holders. The new administration has consistently made clear that it is prioritizing American workers moving forward and if WHD’s dismissal of its appeal to ARB in O’Bryan Composting is any indication of the new DOL leadership’s agenda, H-2A employers may very well see a reduction or change in enforcement actions brought by WHD based on corresponding employment allegations involving foreign nationals employed on a temporary work visa. With these rulings, employers can strictly limit corresponding employment protections to U.S. domestic workers.