Maine’s Attorney General Urges U.S. Court of Appeals to Restore Law Blocking Hiring of H-2A Workers

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Hiring of H-2A Workers

Maine’s Attorney General is encouraging the First Circuit to enforce a law that would punish businesses that hire H-2A workers as logging truck drivers. The state’s Attorney General argues that the law should be regarded as an employment-related law and not as one that conflicts with the federal government’s right to set immigration policy.

In a move to restore Public Law 280, which aims to block landowners from employing specific categories of non-residents, including H-2A agricultural visa holders, the Attorney General has challenged a trade group’s claim that the law interferes with the federal immigration authority. In its argument, the state claims that despite discouraging employers from hiring H-2A workers for these positions, it would not prevent foreign workers from entering the state and, as a result, does not qualify as a prohibited immigration policy. Instead, the state argues that this law regulates domestic employers and landowners by creating an employment law that encourages hiring U.S. workers.

Simply having an impact on the number of H-2A decisions made does not make it an immigration law, the Attorney General argues, simply an employment law within the bounds of permissible state legislation. Furthermore, he claims the H-2A visa program only permits employers to hire foreign agricultural workers if doing so will not adversely impact U.S. workers. Public Law 280, which only exists to protect U.S. workers, does not conflict with federal immigration law. Nor, he argues, does it affect the outcome of a given H-2A application. The decision on whether to grant labor certification and the result of an H-2A visa application would still rest on the Department of Labor and other federal agencies.

Public Law 280 was challenged by a trade group representing a variety of stakeholders in Maine’s forestry sector, accusing it of violating federal immigration law by instituting a permanent ban on hiring H-2A workers as log drivers. An injunction from a U.S. District Court was the result earlier this year. The Court found that as H-2A workers must work for their sponsoring employer, prohibiting businesses from employing them would place the state as the final authority in these workers’ immigration statuses. The First Circuit Court of Appeals will soon decide these arguments’ ultimate fate.

The result will be a significant decision for many businesses. Restoring Public Law 280 will allow Maine to prohibit companies from hiring H-2A workers for certain positions. If this happens, it could also encourage other states to ban H-2A workers from various jobs. Banning H-2A workers from some jobs could make it more difficult for businesses to obtain needed workers. It remains to see what the Court will decide, so companies that hire H-2A workers may want to keep an eye on this case.

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