“Let’s call a spade a spade,” Dermot Lynch with firm Zuckerman Spaeder said this morning before a three-judge-panel of the federal appeals court.
Explaining that shepherds often remain in the country for at least three years, Lynch said the Department of Homeland Security has been approving H-2A visas for shepherds improperly, and that the net effect of this is depressed wages. Most foreign sheepherders earn about $2-$3 dollars per hour, or roughly $750 per month, he said.
Lynch appealed to the D.C. Circuit after a federal judge ruled against his clients and the Hispanic Affairs Project at summary judgment last year.
While an initial visa is issued for 364 days, they are often extended twice more at the end of each year for shepherds. After that, Lynch says many shepherds return home for three months but then come back to the United States for another three-year sheepherding stint.
“We have declarations from all these American workers asking for work on these ranches and they can’t get it,” Lynch said.
Lynch explained that the Department of Labor, which approves labor certifications before Homeland Security processes the visa petitions, has an unwritten policy of rubber-stamping the certifications, as does Homeland Security when it comes to approving temporary H-2A visa petitions for shepherds.
This, Lynch said, has created a shepherd-specific exemption that fails to comply with H-2A requirements, which sets distinct – and low – wage floors for foreign shepherds.
During the hearing this morning, U.S. Circuit Judge Patricia Millet focused much of her questions not on wages, however, but on the visa-renewal process.
The judge appeared rankled when Department of Justice attorney Heather Sokolower could not pin down the volume of H-2A visa renewals that Homeland Security sees.
“I don’t have that data, it’s not on the record,” Sokolower responded.
Though she conceded that the Department of Labor could compile such data, Sokolower pointed the finger back at Lynch by noting that he had not sought discovery about renewal rates from Homeland Security.
Clarifying this point, Sokolower emphasized that Homeland Security extends the H-2A shepherd visas but does not renew them.
Millet pressed Lynch about this lack of discovery on rebuttal, saying any evidence of a pattern he could show would pack a powerful evidentiary punch.
“We didn’t think we needed discovery on something that seems abundantly clear,” Lynch said.
Sokolower meanwhile noted several times that no one raised an issue during the rule-making process about the 364-day visa.
This drew fire from Millet, who said she found it odd that the Homeland Security and the Department of Labor wouldn’t question during litigation whether they are unlawfully approving H-2A visas.
Millet, along with Chief U.S. Circuit Judge Merrick Garland, noted that the Department of Labor itself concluded that the work is not temporary or seasonal.
“That’s just an empirical fact,” Garland said.
Sokolower insisted Lynch has only provided anecdotal evidence and has no hard data to back up his claim that the agencies are rubber-stamping temporary visas improperly.
Sokolower added that no clear consensus emerged during the public-comment period of the rule-making process on seasonality, saying that meant there was no need to depart from historical practice.
“Meaning treating them as temporary when they’re not,” Millet retorted.
“You should know what your own practices are,” Millet later added. “No one should have to raise that for you.”
Sokolower argued that was all beside the point. The Administrative Procedure Act bars this type of challenge since the Hispanic Affairs Project and the shepherds didn’t raise the rubber-stamp policy in their initial complaint.
But Lynch argued that the government recently acknowledged that shepherds tend to remain in the United States for three years. If Homeland Security is now taking the position that they can be here for that long, Lynch said that constitutes interpretation of the law, making the policy a final agency rule reviewable under the law.
Garland meanwhile pressed Lynch to explain how the interests of both foreign and American sheepherders would be advanced if the court rules in their favor.
Lynch said Homeland Security would need to figure out new seasonal and hourly wages. But he also pointed to an entirely separate regulatory framework that would enable shepherds to obtain green cards and allow them to “vote with their feet.”
Right now, employers must sponsor the visa petitions for the shepherds, which ties the foreign workers to their employers. The shepherds would be free to move to other employers if they had green cards, Lynch said.
“That would create a natural increase in wages,” he said.
Sokolower meanwhile insisted that Lynch’s clients could petition Homeland Security for a new rule if they’re unsatisfied with how the agency now handles the H-2A visas for shepherds.
The panel did not say when they would issue a ruling on the matter, noting only that they had taken the matter under advisement.