Farmer, staffing firm debarred from H-2A visa program after falsifying documents for temporary, foreign workers at Volga, South Dakota, dairy

VOLGA, S.D. — A federal administrative law judge upheld the findings of a U.S. Department of Labor Wage and Hour Division investigation that led to the debarment of a Volga dairy farmer and an Aberdeen-based employment agency from a program that allows employers to hire temporary foreign labor for agricultural work. The judge also agreed that the dairy farmer owed $38,173 in wages to 15 U.S. workers after the domestic employees received lower earnings than the foreign workers.

Employment USA LLC and its operations manager, Kevin Opp, and Old Tree Farms LLC have been debarred from the H-2A temporary worker visa program for falsifying documents to employ temporary foreign agricultural workers on a year-round basis. VerPaalen Custom Service LLC, a company established by the owners of Old Tree Farms to circumvent visa program rules, has also been included in the debarment order. Opp and the two businesses have been debarred from the federal temporary employment program for three years.

"These egregious violations denied U.S. workers access to jobs and wages they deserved and gave the employment agency and the dairy operation an unfair advantage over competitors," said Dr. David Weil, administrator of the Wage and Hour Division. "We will use all available enforcement tools to protect the rights of workers and to ensure a fair and level playing field for employers."

Administrative Law Judge William S. Colwell issued the decision against Employment USA and Opp after they contested violations identified by the Wage and Hour Division. Under the terms of a consent agreement, Old Tree Farms and VerPaalen Custom Service paid back wages to U.S. workers who were paid a lower wage for the same job as the temporary foreign workers. The company also paid a civil money penalty of $11,827 for violating provisions of the H-2A program. Judge Colwell approved this agreement on Nov. 26, 2014.

The H-2A temporary agricultural program allows agricultural employers who anticipate a shortage of domestic workers to bring nonimmigrant foreign workers to the U.S. to perform agricultural labor of a temporary or seasonal nature.

Old Tree Farms needed workers for year-round, nonseasonal dairy duties, which are not qualified for the H-2A program. Investigators found that the business created a second company, VerPaalen Custom Service, so that it could hire workers on a seasonal basis and then transfer them between the two companies to create the appearance of meeting the requirements of temporary employment. Employment USA and Opp knowingly assisted the dairy operation in filing misleading applications with the federal program.

The South Dakota dairy employed the workers in 2011 and 2012.

Before the U.S. Citizenship and Immigration Services can approve an employer's petition for H-2A visa workers, an employer must file an application with the department stating that there are not sufficient workers who are able, willing, qualified and available, and that the employment of nonimmigrant, temporary workers will not adversely affect the wages and working conditions of similarly employed U.S. workers. The law provides for numerous worker protections and employer requirements with respect to wages and working conditions that do not apply to nonagricultural programs.

For fiscal year 2015, the department has processed more than 6,700 H-2A applications.

Visit http://www.dol.gov/whd/ or call the division's toll-free helpline at 866-4US-WAGE (487-9243) for more information.