New regulations for hiring foreign agricultural guestworkers were enacted properly despite changing significantly between the Trump and Biden administrations, according to a federal judge.

U.S. District Judge Rudolph Contreras in Washington, D.C., has dismissed a lawsuit filed by a group of farm employers, which argued Biden’s H-2A visa program rules were implemented in 2022 contrary to federal administrative law.

The National Council of Agricultural Employers claims the Biden administration’s foreign guestworker regulations are substantially more onerous than the version the U.S. Department of Labor tried to push through in the Trump administration’s final days.

‘A bad regulation’

“It’s a bad regulation that inappropriately increases costs on employers already struggling to stay afloat,” said Michael Marsh, NCAE’s president and CEO.

The NCAE expects to file a “notice of appeal” this week as a placeholder, though the organization is still consulting with attorneys about whether to challenge the ruling.

“We haven’t made that decision yet,” he said.

The organization’s complaint focused on regulatory changes made during the legally precarious transition period between presidential administrations, which has spurred similar lawsuits in the past.

Days before leaving office, the Trump administration tried to finalize H-2A rules that were more flexible and less time-consuming for farm employers and also changed how wages for guestworkers were calculated.

Though these H-2A rules were signed by the necessary Department of Labor officials and submitted to the Federal Register, the government’s official publication for announcing regulatory actions, they weren’t technically published before Trump left office, according to the judge.

Regulations were withdrawn

Upon taking office, the Biden administration quickly withdrew the regulations and imposed its own version in 2022, which NCAE believes is so burdensome that many farmers avoid the H-2A program despite facing labor shortages.

The NCAE argued that Biden’s Department of Labor didn’t follow required notice-and-comment procedures before the agency withdrew the earlier regulations and enacted its own, but the judge has rejected those arguments.

The Biden administration’s regulations can plausibly be considered “a logical outgrowth” of the proposal originated under the Trump administration, and thus didn’t require another round of notice-and-comment under administrative law, the ruling said.

While NCAE argued the Trump administration’s version “marked the culmination of the rule-making process,” those regulations never crossed “the finality threshold” because they weren’t published by the Federal Register, according to the judge.

The regulations also weren’t offered by the Federal Register for public inspection, which also connotes finality under an earlier legal precedent, he said, referring to Obama-era horse abuse rules the Trump administration failed to rescind.

Neither the announcement of the H-2A regulation’s finality on a federal website nor the signatures of relevant administration officials  were enough to overcome that shortcoming, the ruling said.

“Binding precedent indicates, however, that these facts alone do not suffice to show that a rule is ‘final’ in the sense that it may not be withdrawn without notice-and-comment,” the judge said.

While the Trump administration disclaimed in its online announcement that the H-2A rules are only subject to “technical or formatting changes” in the Federal Register, “nothing would have prevented agency officials from enacting larger, more substantive changes,” according to the ruling.

In an email to the Department of Labor, the NCAE itself worried the Trump-era regulations would be caught in the Biden administration’s “regulatory freeze” and thus never “see the light of day,” the judge said.