DOL is threatening to debar my farm from the H-2A program — what can I do?

Debarment from the H-2A program under 29 C.F.R. § 501.20 (and H-2B under § 503.20) is the most consequential enforcement action DOL Wage and Hour Division can take against an employer. It is separate from back-wage and civil-penalty assessments and runs for 1–3 years depending on the willfulness and pattern of the violations found. During debarment the employer is categorically ineligible to file H-2 petitions — meaning the operation either replaces the workforce entirely or downsizes.

How a debarment case develops

1. WHD investigation. Typically triggered by a worker complaint, a randomized audit, or a state-agency referral. The investigator visits the worksite, interviews workers separately from management, audits payroll, inspects housing, and reviews recruitment documentation.
2. Notice of Investigation Findings (NOIF). WHD issues a written notice of the alleged violations with calculations for back wages and proposed civil money penalties.
3. Notice of Determination (NOD). If the employer does not pay back wages and civil penalties within 30 days of the NOIF, WHD issues a NOD that may include a proposed debarment.
4. Administrative review. The employer has 30 days to request a hearing before an Administrative Law Judge (ALJ) of the Office of Administrative Law Judges.
5. ALJ hearing. An evidentiary trial — testimony, exhibits, cross-examination. The ALJ issues a written decision.
6. Administrative Review Board (ARB). Appeals from the ALJ go to the ARB at the Department of Labor.
7. Federal court. APA challenge to the final agency action is available under 5 U.S.C. § 701 et seq.

The willfulness fight

Debarment length turns on whether the violations were willful (showing the employer knew or should have known and did not comply) or non-willful (a good-faith mistake). The same factual record can support either characterization — and the difference can be 1 year of debarment versus 3.

We litigate willfulness on three fronts:

• Compliance program evidence — written policies, training records, retained counsel, periodic internal audits.
• Corrective-action evidence — what the employer did after learning of the issue (back wages paid, housing repaired, recruiter terminated, policy revised).
• Industry-standard evidence — what is typical and what level of nonconformity reasonably indicates indifference versus oversight.

The mitigation record

Even where the violations occurred, the ALJ has discretion on debarment length. Mitigation factors that have reduced debarment include:

• Full back-wage make-whole to every affected worker, paid promptly.
• Termination of the responsible foreign recruiter with documentary evidence.
• Engagement of independent compliance counsel with a documented program going forward.
• Cooperation with the investigation including voluntary document production.
• Lack of prior violations — first-offense employers fare better.

How we handle this

The case starts the day the NOIF arrives. We do four things in parallel: (1) preserve every potentially relevant document (litigation hold), (2) pay back wages found owed under the NOIF if calculations are not contested (mitigation), (3) commission an internal investigation by independent counsel, (4) file the hearing request to preserve all appeal rights. The ALJ hearing is the trial; everything before it is shaping the record. Many cases settle pre-hearing on terms that avoid debarment entirely — but only when the mitigation work has been done.