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South Dakota farmer, staffing firm debarred from H-2A visa program

November 13, 2015

The US Department of Labor announced a federal administrative law judge upheld its wage and hour division’s findings that a South Dakota dairy farmer and its staffing provider falsified documents to employ temporary foreign agricultural workers on a year-round basis.

Old Tree Farms LLC in Volga, SD, and Aberdeen, SD-based Employment USA LLC and its operations manager, Kevin Opp, 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, was also included in the debarment order.

The H-2A temporary agricultural program allows agricultural employers who anticipate a shortage of domestic workers to bring nonimmigrant foreign workers to the US to perform agricultural labor of a temporary or seasonal nature. Opp and the two businesses have been debarred from the federal temporary employment program for three years.

Old Tree Farms needed workers for year-round, non-seasonal dairy duties, which are not qualified for the H-2A program, according to the Department of Labor. 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.

The judge also agreed that the dairy farmer owed $38,173 in wages to 15 US workers after the domestic employees received lower earnings than the foreign workers.

Administrative Law Judge William 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 US 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.