 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued May 11, 2018                 Decided August 17, 2018

                        No. 17-5202

             HISPANIC AFFAIRS PROJECT, ET AL.,
                       APPELLANTS

                              v.

R. ALEXANDER ACOSTA, IN HIS OFFICIAL CAPACITY AS UNITED
         STATES SECRETARY OF LABOR, ET AL.,
                     APPELLEES


        Appeal from the United States District Court
                for the District of Columbia
                    (No. 1:15-cv-01562)


     Dermot Lynch argued the cause for appellants. With him
on the briefs was William W. Taylor, III.

     Heather Sokolower, Trial Attorney, U.S. Department of
Justice, argued the cause for appellees. With her on the brief
was Erez Reuveni, Assistant Director.

     Christopher J. Schulte was on the brief for intervenors
aligned with defendants-appellees, Western Range Association
and Mountain Plains Agricultural Service.

   Before: GARLAND, Chief Judge, and SRINIVASAN and
MILLETT, Circuit Judges.
                              2

    Opinion for the Court filed by Circuit Judge MILLETT.

     MILLETT, Circuit Judge: For all the pastoral images it
may invoke, tending to a flock is no easy task. Livestock
herders often spend months at a time living in makeshift
campsites on a remote range, on call twenty-four hours a day
to protect the herd. Given the spartan and isolated working
conditions, the sheep and goat industries have become almost
wholly dependent on foreign labor to work as herders. Many
of these foreign workers come to the United States on what are
known as H-2A visas, which allow nonimmigrants to enter to
perform certain agricultural work. By law, H-2A visas may
issue only if the employer’s need for the worker is temporary
or seasonal. But time and again, federal agencies have
allowed ranchers to employ foreign herders on H-2A visas for
year-round, non-seasonal work that lasts up to three years at a
stretch.

     The Hispanic Affairs Project, a membership organization
of herders, and four individual herders challenge those
agencies’ 364-day certification period for H-2A visas as
unmoored from the reality of herders’ employment, and the
agencies’ allegedly persistent pattern of routinely extending
“temporary” visas to meet ranchers’ anything-but-temporary
need for herders. They also challenge a number of additional
regulatory measures, including the minimum wage required for
herders. We hold that the challenge to the policies pertaining
to the certification and automatic extension of H-2A visas can
go forward, but we otherwise affirm the district court’s
dismissal of the plaintiffs’ claims.
                                 3
                                 I

                                 A

     Dubbed “H-2A,” Section 1101(a)(15)(H)(ii)(a) of the
Immigration and Nationality Act defines qualifying
“nonimmigrant[s]” as those “having a residence in a foreign
country” with “no intention of abandoning [it],” and who come
to the United States “to perform agricultural labor or services
* * * of a temporary or seasonal nature.”              8 U.S.C.
§ 1101(a)(15)(H)(ii)(a) (emphasis added). H-2A-visa holders
have no independent route to apply for permanent residency or
legal citizenship. Instead, they are dependent on their visa
sponsors to lawfully stay in and return to the United States for
work. See 20 C.F.R. § 656.16 (only employers can opt to
apply for a permanent labor certification for herders, which can
lead to residency and citizenship).

      The Department of Homeland Security and the
Department of Labor are jointly responsible for administering
the H-2A program. To obtain an H-2A visa to bring in
foreign workers, an employer must first submit to the Labor
Department an Application for Temporary Employment
Certification. In that Application, the employer must establish
that:    (i) the temporary foreign worker will “perform
agricultural labor or services of a temporary or seasonal
nature,” 20 C.F.R. § 655.103; (ii) there are no domestic
workers available that are qualified to fill the position; and (iii)
hiring the foreign workers would not “adversely affect the
wages and working conditions of workers in the [United States]
similarly employed,” id. § 655.100; 8 U.S.C. § 188(a)(1). If
the Labor Department finds that those requirements are met, it
may issue the Certification.
                                 4
    The torch is then passed to the Department of Homeland
Security, which makes the final decision on whether or not to
grant the employer’s H-2A petition. 8 U.S.C § 1184(c)(1).
To obtain that final approval, the H-2A petition must establish
to Homeland Security’s satisfaction that the proposed
employment, among other things, is of a “temporary or
seasonal nature,” 8 C.F.R. § 214.2(h)(5)(iv)(A). 1

     Homeland Security regulations define “temporary” as
“where the employer’s need to fill the position with a
temporary worker will, except in extraordinary circumstances,
last no longer than one year.” 8 C.F.R. § 214.2(h)(5)(iv)(A)
(emphasis added). Homeland Security regulations emphasize
that the Labor Department’s earlier finding that the
employment would be temporary is “normally,” but not
necessarily, “sufficient[.]”       Id. § 214.2(h)(5)(iv)(B).
Homeland Security could take exception to that prior finding if
“substantial evidence” shows that “the employment is not
temporary or seasonal.” Id.

     Once an H-2A visa issues, the immigrant worker can stay
for the duration of the “validity of the labor certification or for
a period of up to one year,” but in no event can the stay “exceed
three years.” 8 C.F.R. § 214.2(h)(15)(ii)(C). As it turns out,
in practice, most herders stay and work for just short of three
years, spend three months in their home country, and then
return to the United States on another H-2A visa. See Second

    1
       While the Act refers to the Attorney General as the final
decisionmaker on H-2A applications, the Attorney General has the
power to “delegate such authority,” 8 U.S.C. § 1103(g)(2), and the
Department of Homeland Security is now largely responsible for
“administration and enforcement” of “immigration and
naturalization” matters, id. § 1103(a)(1), including H-2A visas, see
generally Alfred L. Snapp & Son, Inc. v. Puerto Rico, ex. rel. Barez,
458 U.S. 592, 595 (1982).
                               5
Amended Complaint, Hispanic Affairs Project v. Perez, No.
15-1562 (D.D.C. Dec. 22, 2015), ECF No. 58 at ¶ 51 (“Second
Am. Compl.”); J.A. 776 (ranching employer referring to
herders’ “three-year contracts on an H-2A visa”); J.A. 796
(another employer relating that the H-2A program permits
herders to “come to the U.S. for up to 3 years and then return
to their home country for a brief period of time”).

                               B

     To protect domestic jobs, the Department of Labor has
promulgated regulations that set minimum wages and working
conditions for H-2A workers and their domestic counterparts.
Generally, the Labor Department requires the employers of H-
2A workers to pay those workers the highest wage set by (i) the
Adverse Effect Wage Rate, which is determined by Labor “to
ensure that the wages of similarly employed U.S. workers will
not be adversely affected[,]” 20 C.F.R. § 655.1300; (ii) “the
prevailing hourly wage or piece rate; [(iii)] the agreed-upon
collective bargaining wage; or [(iv)] the Federal or State
minimum wage,” id. § 655.120(a).

     But employers of open-range herders, such as sheep and
goat herders, are exempt from that minimum-wage requirement
due to the unique characteristics of the position, which include
“spending extended periods” of time “in isolated areas and
being on call twenty-four hours a day, seven days a week to
protect livestock.” Mendoza v. Perez, 754 F.3d 1002, 1009
(D.C. Cir. 2014). In 2011, the Secretary issued a Training
Employment Guidance Letter that formalized the exemption of
herder employers from the regulation’s prescribed wage rates.
The 2011 Guidance Letter adopted instead a different method
for calculating the prevailing wage, setting a lower floor for
what employers must pay H-2A open-range herders.
                                6
     In an earlier case challenging the procedural validity of the
2011 Guidance Letter, we held that the Administrative
Procedure Act required that the Guidance Letter’s prescriptive
content be promulgated through the notice-and-comment
process, 5 U.S.C. § 553. See Mendoza, 754 F.3d at 1008–
1009, 1024–1025. The case was then remanded, and the
district court ruled that the invalidated 2011 Guidance Letter
could remain in effect while a new rule was properly
promulgated. ORDER, Mendoza v. Perez, No. 11-1790
(D.D.C. Oct. 31, 2014), ECF No. 54 at 1.

     The Labor Department then promulgated a new rule,
through notice and comment, that took effect on November 16,
2015. 80 Fed. Reg. 62,958 (Oct. 16, 2015). The 2015 Rule
laid out a number of regulations governing the employment of
seasonal and temporary herders, including minimum-wage
standards. Id. The 2015 Rule applies not only to goat and
sheep herders, but also to open-range herding of other
livestock, such as cattle. 80 Fed. Reg. at 62,962.

                                C

     The Hispanic Affairs Project is a Colorado-based non-
profit advocacy organization whose members consist of both
United States resident and nonimmigrant “current H-2A
shepherds who have labored under the 2011 * * * and 2015
Rule, and former herders who would legally work as herders
again but for the low wages earned by workers in this industry.”
Second Am. Compl. ¶ 4. The Project and four individual
shepherds (collectively, “the Project”) filed suit against the
Departments of Labor and Homeland Security under the
Administrative Procedure Act, 5 U.S.C. § 551 et seq. As
relevant here, the Project sought a declaratory judgment that
the 2011 Training and Employment Guidance Letter was
substantively invalid and challenged the agencies’ practice of
                                   7
automatically extending visas for up to three years as arbitrary
and capricious for failure to comply with the statutory
obligation to limit H-2A visas to “temporary” work. The
Project also contends that the minimum wage set for herders by
the 2015 Rule is unjustifiably low. 2

     The district court dismissed claims related to the already-
vacated 2011 Guidance Letter for lack of standing because the
plaintiffs’ injuries were not redressable by a favorable decision
from the court. See Hispanic Affairs Project v. Perez, 206 F.
Supp. 3d 348, 366 (D.D.C. 2016). The district court later
granted summary judgment for the agencies on the remaining
claims. See Hispanic Affairs Project v. Acosta, 263 F. Supp.
3d 160, 207 (D.D.C. 2017). The court refused to consider the
Project’s argument that the agencies’ authorization of
“permanent” H-2A visas violates the Immigration and
Nationality Act for two reasons. First, the court ruled that the
Project’s challenge “boil[ed] down to an attack on [Homeland
Security’s] H-2A regulations[,]” which was not raised in its
complaint and, in any event, was outside the APA’s six-year
statute of limitations. Id. at 185. Second, the court held that
the Project had failed to raise during the administrative
proceedings its challenge to Labor’s finding that employers’
need for herders is “temporary” and so had waived the issue.
Id. at 186–190. As for the Project’s other challenges to the
2015 Rule, including to the minimum-wage rate, the district
court held that the agency decisions were reasonable. Id. at
192–199.


     2
      Plaintiffs initially brought their action in the District Court for
the District of Colorado, but the case was transferred to the District
Court for the District of Columbia as related to the Mendoza case.
ORDER GRANTING JOINT MOTION TO TRANSFER, Hispanic Affairs
Project v. Perez, No. 15-1785 (D. Colo. Sept. 22, 2015), ECF No.
18.
                                8
                               II

     This Court reviews de novo a district court’s grant of
summary judgment. Clemente v. FBI, 867 F.3d 111, 119
(D.C. Cir. 2017). Dismissals for lack of subject matter
jurisdiction or failure to state a claim are likewise reviewed de
novo. Trudeau v. Federal Trade Comm’n, 456 F.3d 178, 183
(D.C. Cir. 2006). Under the Administrative Procedure Act, a
reviewing court “shall hold unlawful and set aside agency
action” that is “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.” 5 U.S.C. § 706(2).

    Applying those standards, we hold that (i) the Project’s
complaint adequately raised a challenge to the Department of
Homeland Security’s practice of automatically extending
“temporary” H-2A petitions for multiple years; (ii) the Project
adequately preserved its challenge to the Department of
Labor’s decision in the 2015 Rule to classify herding as
“temporary” employment; (iii) the 2015 Rule’s minimum-
wage rate for herders is not arbitrary, capricious, or
unsupported by the record; and (iv) the Project lacks standing
to challenge the wage rates set by the already-vacated 2011
Guidance Letter.

                               III

                                A

                                1

    At the heart of the Project’s lawsuit is Homeland
Security’s alleged pattern and apparent policy of routinely
extending a herder’s 364-day H-2A visa so that, in practice, the
temporary authorization lasts for up to three years at a time,
and those prolonged periods of employment are repeated over
                                 9
and over, interrupted only by the herders’ brief, pro forma
visits to their home country once every three years.

     Homeland Security regulations require that H-2A visas be
for “temporary” work, and they define temporary as, “except
in extraordinary circumstances, last[ing] no longer than one
year.” 8 C.F.R. § 214.2(h)(5)(iv)(A). The only exception is
that an H-2A worker “may remain longer to engage in other
qualifying temporary agricultural employment by obtaining an
extension of stay” not to exceed three years.              Id.
§ 214.2(h)(5)(viii)(C) (emphasis added). Homeland Security
has made no official decision that herder visas categorically
present the type of “extraordinary circumstances” justifying
across-the-board extensions. So that means that an H-2A
herder cannot stay in the United States for more than the 364
days provided in his petition, unless he engages in “other”
temporary work. Id. 3

     The Project contends that, in contravention of the statutory
and regulatory requirements that herder visas may be used only
for temporary work, Homeland Security’s “policy is that visa
petitions will be issued for indefinite periods, with short breaks
every three years for this permanent workforce.” Second Am.
Compl. ¶ 51. In district court, the Project provided multiple
declarations from its employees, members, and other herders,
along with statements from employers, all confirming that, due
to Homeland Security’s policy of “continually renew[ing]” H-
2A visas, herders frequently stay in their positions for much
longer than the 364 days authorized by the regulation, and
commonly work for up to three years at a time. See, e.g., J.A.

    3
      Visas may also be provided for “seasonal” work. 8 U.S.C.
§ 1101(a)(15)(H)(ii)(a). That provision is not at issue here because
Labor has decided that herding should be classified and regulated as
temporary work. 80 Fed. Reg. at 63,000.
                                10
332 (interviews with H-2A shepherds reveal that “they work
on a permanent basis in [the United States] pursuant to
continually renewed H-2A contracts that last around three
years”); J.A. 335 (“[A Worker-Advocate] h[as] met at least
ninety shepherds who were working on at least their second
three-year contract,” and around sixty workers who “have done
more than three contracts.”); J.A. 343 (herder attests that, from
2006 to 2015, he completed three almost-three-year H-2A
shepherd contracts with the same employer); J.A. 355 (“Most
H-2A shepherds I have met in Colorado, Utah, and Wyoming
complete contracts that last three years.”); J.A. 359
(Announcement from H-2A Employer Western Range
Association stating that H-2A shepherd contracts have a “36
month work period”); see also 80 Fed. Reg. at 62,999 (“Several
employer comments indicate that they re-employ the same H-
2A workers over the years.”). 4 As the district court found, the
record evidence “indicates that H-2A shepherds * * * return
many times working for the same rancher for up to twenty
years.” Hispanic Affairs Project, 263 F. Supp. 3d at 180.

     As a result, according to the Project’s extensive evidence
of Homeland Security’s actual practice, which we take as true
at this procedural juncture, both herders and their employers

    4
       The district court struck many of the Project’s declarations
because they were outside of the administrative record considered by
the Labor Department in promulgating its 2015 Rule. Hispanic
Affairs Project, 263 F. Supp. 3d at 172. But as relevant here, the
Project employs the declarations for the distinct and permissible
purpose of proving that the Department of Homeland Security has a
practice or policy of routinely extending H-2A visa status for three
years—a policy that is alleged to contravene both the Immigration
and Nationality Act and its own regulations. See Venetian Casino
Resort, LLC. v. Equal Employment Opportunity Comm’n, 530 F.3d
925, 930 (D.C. Cir. 2008) (permitting external evidence to determine
whether an agency’s challenged policy exists).
                               11
routinely operate on the expectation that herders will travel to
the United States to work for just shy of three years before
returning home for a brief period of time, and then returning
for another nearly three-year stint. See, e.g., J.A. 335; J.A.
776. There also is no evidence, from Homeland Security or
otherwise, to indicate that a widespread pattern of either
extraordinary circumstances or herders engaging in “other
qualifying” work have underlain Homeland Security’s
seemingly routine and repeated extensions of visas at the end
of the shepherds’ 364-day certification periods.

     On that evidentiary basis, the Project has plausibly shown
that the agency’s de facto policy of authorizing long-term visas
is arbitrary, capricious, and contrary to law, in violation of the
APA and the Immigration and Nationality Act, 8 U.S.C. § 1101
et seq., because it “[a]uthoriz[es] the creation of permanent
herder jobs that are not temporary or seasonal[.]” Second Am.
Compl. ¶¶ 112, 114.

     The district court, however, dismissed this claim against
Homeland Security because the court understood the Project to
be attacking Homeland Security regulations, and then found
that those regulatory challenges were neither raised in the
complaint, nor timely under the APA’s six-year statute of
limitations. Hispanic Affairs Project, 263 F. Supp. 3d at 185–
186.

     The district court was mistaken. In this claim, the Project
is not challenging Homeland Security’s formal regulations.
The Project takes no exception to the content of the
certification and extension regulations. That is because
nothing in the written regulations licenses the routinized
approval of H-2A shepherd petitions and visa extensions for
triple the amount of time permitted by the regulation’s explicit
definition of “temporary.” 8 C.F.R. § 214.2(h)(5)(iv)(A); see
                              12
Second Am. Compl. ¶¶ 51, 112, 114. Instead, what the
Project assails is Homeland Security’s practice of shrugging off
those statutory and regulatory limitations, seemingly ignoring
their straightforward requirement that herders’ work be
“temporary.”

     The district court viewed the extension policy and practice
as “intertwined” with the formal regulations. Mendoza, 263
F. Supp. 3d at 186. The opposite is true. If the Project were
to prove its claims of routine three-year or longer employment
terms, Homeland Security’s policy and practice would
contravene the plain text of its own regulations. See 8 C.F.R.
§ 214.2(h)(5)(iv)(A) (requiring H-2A employment to be
“temporary or seasonal”); id. § 214.2(h)(15)(ii)(C)
(recognizing that H-2A employees are typically permitted to
stay for “a period of up to one year”).

     An agency’s unannounced departure in practice from a
written regulation is a distinct form of agency action that is
challengeable, separate and apart from adoption of the
regulation itself. See INS v. Yueh-Shaio Yang, 519 U.S. 26, 32
(1996) (Once an agency “announces * * * a general policy by
which its exercise of discretion will be governed, an irrational
departure from that policy (as opposed to an avowed alteration
of it) could constitute action that must be overturned as
‘arbitrary, capricious, [or] an abuse of discretion’ within the
meaning of the [APA.]”); see also Venetian Casino Resort,
LLC. v. Equal Employment Opportunity Comm’n, 530 F.3d
925, 930 (D.C. Cir. 2008) (“[M]aintain[ing] two irreconcilable
policies, one of which * * * [allows] circumvent[ion] of the
other regulation * * * is arbitrary and capricious agency
action.”). In other words, the Project did not need to list a
specific Homeland Security regulation in its complaint as long
as it made clear what policy and practice it challenged. See
Second Am. Compl. ¶ 51. Because the Project was not
                               13
challenging a specific regulation as unlawful, the district court
erred in finding that the claim was not raised in the complaint
and was barred by the APA’s six-year statute of limitations for
challenging specific regulations.

                               2

     Homeland Security offers an alternative theory to support
dismissal. The agency argues that Lujan v. National Wildlife
Federation, 497 U.S. 871 (1990), closes the door on the
Project’s “programmatic challenge[s]” to Homeland Security’s
general governance and administration of the H-2A program,
id. at 908. In National Wildlife Federation, a federal statute
authorized the Secretary of the Interior, in declassifying public
lands, “to determine whether, and for how long, the
continuation of the existing withdrawals of the lands would be,
in his judgment, consistent with the statutory objectives of the
programs for which the lands were dedicated and of the other
relevant programs.” Id. at 877 (internal quotation marks
omitted). The Wildlife Federation filed suit bringing a
programmatic “challenge to all aspects of” a land withdrawal
scheme, seeking to prescribe how the Secretary could and
could not exercise that broad and non-specific grant of
statutory authority. Id. at 890 n.2.

      National Wildlife Federation is of no help to Homeland
Security here. The Supreme Court stressed in National
Wildlife Federation that, in contrast to the broad programmatic
takeover advanced there, an agency’s action in “applying some
particular measure across the board * * * [could] of course
[still] be challenged under the APA.” 497 U.S. at 890 n.2.
The Project is doing just that—arguing the unlawfulness of
Homeland Security’s “particular” practice of habitually
approving and extending H-2A visas for lengthy periods of
time. The statutory command that the Project seeks to
                              14
enforce—that H-2A visas be temporary and short-lived—is
cabined and direct, and the Project targets its argument to an
identified transgression of that statutory and regulatory
language, not to an exercise of broad, unspecified discretion.

     What is more, Homeland Security itself claims no broad
discretionary cloak for its actions, confirming quite explicitly
that if “[herders] are permanent workers then they shouldn’t get
approval on a temporary basis.” Oral Argument Tr. 41:8–
41:9.      Given that acknowledgment and the Project’s
significant, plausible evidence, we remand to the district court
to address the Project’s challenge to Homeland Security’s
alleged pattern and practice of automatically extending H-2A
visas beyond the regulatory definition of temporary
employment. On remand, the district court is free to exercise
its discretion to permit further discovery “to ascertain the
contours of the precise policy at issue.” Venetian Casino
Resort, 530 F.3d at 928 (internal quotation mark omitted).

                               B

     The Project separately sought to challenge the Labor
Department’s decision in the 2015 Rule to categorize herders
as the type of temporary positions permitted by the H-2A visa
program. In the Project’s view, the regulatory scheme grants
herders and their employers what is, in effect, a permanent
work visa to meet a permanent and enduring need for workers.
J.A. 494. More specifically, the Project argues that the Labor
Department’s newly promulgated regulation permitting “[t]he
period of need identified on the H-2A Application for
Temporary Employment Certification and job order for range
sheep or goat herding” to be “364 calendar days,” 20 C.F.R.
§ 655.215(b)(2) (emphasis added), is inconsistent with the
Immigration and Nationality Act and Labor’s own regulations.
That statute requires that H-2A visas be only for “temporary”
                              15
work, 8 U.S.C. § 1101(a)(15)(H)(ii)(a), which Labor has
interpreted to mean that the employer’s actual “need to fill the
position with a temporary worker * * * last no longer than one
year,” 20 C.F.R. § 655.103(d) (emphases added). Whatever a
certification application may identify, employers’ actual
“need” for herders, the Project insists, is anything but
temporary, id.

     The district court dismissed this claim for failure to
exhaust, concluding that the challenge was not sufficiently
raised before the agency during the rulemaking process. We
again disagree with the district court.

     To preserve an objection to agency rulemaking for judicial
review, courts generally require “the argument petitioner
advances” to have been raised before the agency; it is not
enough to have just asserted “the same general legal issue.”
Koretoff v. Vilsack, 707 F.3d 394, 398 (D.C. Cir. 2013)
(internal quotation marks and alteration omitted). At its core,
that administrative exhaustion requirement “ensure[s that] an
agency has had an opportunity to consider the matter, make its
ruling, and state the reasons for its action” before a court
weighs in. Oklahoma Dep’t of Environmental Quality v. EPA,
740 F.3d 185, 192 (D.C. Cir. 2014) (internal quotation marks
omitted); see also Fertilizer Institute v. EPA, 935 F.2d 1303,
1313 (D.C. Cir. 1991) (“[T]his exhaustion requirement is
prudential and must be applied flexibly with an eye toward its
underlying purposes.”) (internal quotation marks omitted).
Administrative exhaustion also prevents litigants from
“‘sandbag[ging]’ agencies by withholding legal arguments for
tactical reasons until they reach the court of appeals.”
Oklahoma, 740 F.3d at 192 (internal quotation marks omitted).

   Exhaustion, however, is not a license for agency passivity.
Agencies always bear the “affirmative burden” of
                              16
“examin[ing] a key assumption” when “promulgating and
explaining a non-arbitrary, non-capricious rule.” Oklahoma,
740 F.3d at 192. That means that an agency “must justify [a
key] assumption” underlying its regulation “even if no one
objects during the comment period.” Id. (internal quotation
marks omitted).

     That “affirmative burden” to explain all of the “key
assumption[s]” embedded in its new regulations applies with
full force to Labor’s rules governing herders. Oklahoma, 740
F.3d at 192. That is because the 2015 Rule was the first time
the agency “establish[ed] standards that govern H-2A herder
occupations * * * through notice and comment rulemaking[,]”
80 Fed. Reg. at 62,959, and equipped its judgments with the
“force of law” that comes with notice-and-comment
rulemaking, United States v. Mead Corp., 533 U.S. 218, 227
(2001). Consequently, there is no prior regulatory source for
the foundational elements of the rule to which one could turn.

     Determining that herder work is of a temporary or seasonal
nature was an indispensable prerequisite to Labor’s regulation.
By its terms, the H-2A visa program is confined to fulfilling
employers’ “temporary” or intermittent need for specific
workers. 8 U.S.C. § 1101(a)(15)(H)(ii)(a) (visa program
applies to workers who come to the United States “to perform
agricultural labor or services * * * of a temporary or seasonal
nature”); 20 C.F.R. § 655.103(d); see also 80 Fed. Reg. at
63,000; Oral Argument Tr. 41:8–41:9 (“[I]f they are permanent
workers then they shouldn’t get approval on a temporary
basis.”). The agency has no power under the statute—it is
actually forbidden—to include non-temporary or non-seasonal
workers in the H-2A program.

    As a result, under the H-2A statutory scheme, it was
incumbent on Labor at the outset to explain why sheep, goat,
                             17
and free-range herding is the type of job for which employers
have only a temporary, rather than continuing or long-term,
need. As Labor’s own document name confesses, that
temporal predicate had to be built into the regulatory process
for issuing “Temporary Employment Certifications.”

     Labor knew that. Its Notice of Proposed Rulemaking
“sought comment specifically on the issue of the temporary and
seasonal nature of herder work,” announced that it was
reconsidering the appropriate period of need for employers to
designate on their applications “to reflect more appropriately
[employers’] temporary or seasonal need as required by the
[Immigration and Nationality Act].” 80 Fed. Reg. at 62,999
(citing 80 Fed. Reg. 20,300 (April 15, 2015) (proposed rule)).
And Labor received just that: “Comments on Temporary
Need.” Id. Labor then responded with an answer in the final
regulation, permitting employers to designate their period of
need as 364 days, because that was determined to be consistent
with the statutory mandate. 80 Fed. Reg. at 63,000; see 20
C.F.R. § 655.215(b)(2). So Labor’s decision that the herder
positions qualify as the type of temporary work that is
statutorily eligible for H-2A visas was an essential component
of the 2015 Rule, fully explained and resolved by the agency.
That makes it fair game for judicial review.

     But we need not rely only on Labor’s own affirmative
burden to preserve the issue. While not always models of
clarity, multiple comments in the administrative record
broached the question of whether herding properly qualifies as
temporary or seasonal work. As noted, “Comments on
Temporary Need” was its own sub-section in the final
rulemaking analysis published in the Federal Register. 80
Fed. Reg. at 62,999. A number of employers commented in
support of the 364-day provision, while freely admitting that
“they re-employ the same H-2A workers over the years.” Id.
                               18
Another commenter openly proposed that “foreign herders
should be permitted to stay in the United States longer than
typically allowed because of the unique skills of foreign
herders.” Id. at 62,961. Worker-Advocates for herders, on
the other hand, recommended “two certification periods” in
response to the proposed regulation that “requires that the [job]
order be no more than 364 days but does not otherwise limit
the [job] application.” J.A. 804; see also id. (“A nine month
certification for an open range herder would be sufficient[.]”);
id. (“The Department should create distinct positions at
different times of the year[.]”); 80 Fed. Reg. at 62,999
(Worker-Advocates favored “two separate certification
periods” for the birthing and open range season). The
Worker-Advocates offered a substantial explanation of why
two shorter-length certifications would be more consistent with
the nature of herders’ work. J.A. 804.

     By far, the most telling evidence that the challenge was
properly before the agency is Labor’s own two-fold
justification for its 364-day temporary-need provision. First,
Labor explained that the statute neither “define[s] ‘temporary’
work” nor “indicate[s] how long a position may last and still
qualify.” 80 Fed. Reg. at 63,000. Neither does legislative
history speak to the question. Id. On that basis, Labor
concluded that “neither the statute nor [Homeland Security’s
and Labor’s] regulations proscribe the 364-day period of need”
adopted in the 2015 Rule. Id.

     Second, Labor reasoned that “decades [of] unique history
and experience of sheep herding * * * support the 364-day
period of need for sheep ranchers.” 80 Fed. Reg. at 63,000
(“We see no reason to rescind our reliance on this aspect of
these jobs to shorten the period of need.”). The administrative
record itself accordingly bears out that Labor had a “fair
opportunity” to review its interpretation of temporary need, and
                                19
did in fact do so, “in the administrative forum before [it was]
rais[ed] * * * in the judicial one.” Nuclear Energy Inst., Inc.
v. EPA, 373 F.3d 1251, 1290 (D.C. Cir. 2004).

     Sandbagging is not of concern either. Labor has long
been and remains fully cognizant of the inconsistent treatment
accorded to herders in contrast to all other H-2A workers. For
instance, in a 2001 Field Memorandum issued by the agency
regarding the Temporary Labor Certification of Sheepherders
and Goatherders, Labor admitted that herders are awarded H-
2A status “irrespective of the fact that most sheepherding jobs
are neither temporary nor seasonal in nature.” J.A. 884
(“Under INS procedures, a nonimmigrant foreign worker is
permitted entry into the U.S. for a cumulative period not to
exceed three years for sheepherder positions certified by DOL
under its procedures.”).

     In light of the comments received, the analysis undertaken
by Labor, the inherent necessity to address “temporary” need
as an elemental component of the rulemaking and Labor’s
statutory authorization to act, and Labor’s express justification
of this aspect of its final rule, the Project’s challenge to Labor’s
decision that herding positions qualify as temporary
employment “was expressly addressed by [the agency] and is
properly before the court.” NRDC v. EPA, 755 F.3d 1010,
1023 (D.C. Cir. 2014) (citing Appalachian Power Co. v. EPA,
135 F.3d 791, 818 (D.C. Cir. 1998)). For that reason, we
reverse the district court’s dismissal of this claim and remand
for resolution of its merits.

                                 C

    In the 2015 Rule, the Department of Labor also solicited
comments on and promulgated a new minimum wage for
herders. In doing so, the final rule estimated that herders work
                                20
48 hours per week and directed that, by 2018, herders must be
paid $7.25 per hour. 80 Fed. Reg. at 63,026. For the two
preceding years, however, Labor allowed employers to
gradually adjust to the new pay rate. Labor set the minimum
wage for 2016 at $5.80 (which is 80% of the $7.25 rate) and
increased the wage for 2017 to $6.65 (which is 90% of the
$7.25 rate). In addition, the base hourly wage is adjusted
annually in accordance with the Employment Cost Index,
which is “a quarterly measure of the change in the price of
labor” as calculated by the Labor Department. 5 Based on
those numbers, the monthly wage for herders in 2016 came out
to $1,206. Id.

     The Project argues that Labor acted arbitrarily in setting
the new minimum wage because both the number of work
hours per week and the hourly rate it chose were unreasonably
low. Our review of such claims, though, is “narrow,” and we
cannot “substitute [our] judgment for that of the agency.”
Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto
Ins. Co., 463 U.S. 29, 43 (1983). We ask only whether Labor
“examine[d] the relevant data and articulate[d] a satisfactory
explanation for its action including a rational connection
between the facts found and the choice made.” Id. Labor met
that mark.

                                1

    In its Notice of Proposed Rulemaking, Labor proposed
basing its minimum-wage calculations on a 44-hour work
week. 80 Fed. Reg. at 20,309. That number was the mid-

    5
        John W. Ruser, The Employment Cost Index: What is it?,
Monthly Labor Review (Sept. 1, 2001), available at
https://www.bls.gov/opub/mlr/2001/09/art1full.pdf; see also 80 Fed.
Reg. at 62,993 n.37.
                               21
point between the 40-hour week proposed by employers and
the 48-hour week advanced by Edward Tuddenham, an
attorney who had represented H-2A herders. Id. Tuddenham
calculated a 48-hour week by averaging work-hour estimates
from 192 temporary certification applications submitted by
ranchers to the Department of Labor during the H-2A
petitioning process. 80 Fed. Reg. at 62,995.

     In the final rule, Labor adopted 48 hours as the appropriate
measure of weekly work. 80 Fed. Reg. at 62,995. Labor
reasoned that the 48-hour estimate was based on “the most
diverse data set available” since it was “the only data source
identified by any commenter that includes data collected across
States.” Id. (internal quotation marks omitted).

     The Project launches a two-prong attack on Labor’s
choice, criticizing both its reliance on exclusively employer-
reported data and its rejection of data from a 2010 survey of
Colorado-based herders conducted by a workers’ advocacy
organization, in which approximately 60% of the workers
stated that they worked more than 80 hours per week. Both
criticisms fall short of demonstrating arbitrary, capricious, or
unreasoned decisionmaking.

     To start, Labor recognized up front that its work-hour
estimate would “necessarily be imprecise” because herding
employers had long been exempted from relevant
recordkeeping requirements. 80 Fed. Reg. at 62,995. In
addition, the nature of the work meant that the number of hours
varied greatly throughout the year depending in large part on
whether herders were working on the ranch or roaming with
the herd on the range. Labor also opted against collecting its
own data because it would be “very difficult and resource-
intensive” due to the unique characteristics of herding, id. at
62,996, and in particular the fact that herders “spend[] extended
                              22
periods of time with grazing herds of sheep in isolated
mountainous terrain[,]” id. at 62,962 (internal quotation marks
omitted).

     The mere fact that a “dataset was less than perfect,”
however, “does not amount to arbitrary decision-making.”
District Hosp. Partners, L.P. v. Burwell, 786 F.3d 46, 61 (D.C.
Cir. 2015); see also Chemical Mfrs. Ass’n v. EPA, 28 F.3d
1259, 1265 (D.C. Cir. 1994) (agency does not act arbitrarily
solely for using a model even when data “indicate[s] that it is
not a perfect fit”). So long as the agency “explained the
available evidence” and rationally connected the facts to the
choice made, it acted reasonably and its determination will be
upheld. New York v. EPA, 413 F.3d 3, 31 (D.C. Cir. 2005).

     Labor did just that. Labor surveyed the information
available and concluded that the data from employers’
Temporary Employment Certification applications was “the
most comprehensive and detailed data source from which to
establish an hourly calculation.” 80 Fed. Reg. at 62,996.
Unlike other proposed numbers, the 48-hour estimate factored
in herding employers across America, was officially submitted
by employers to Labor on agency forms, and was also endorsed
by the Worker-Advocates’ Joint Comment. Id. at 62,995.
With respect to concerns that employers would underreport
hours in the hope of attracting more workers, Labor noted that
employers’ job postings already were required to warn
prospective employees that herders “must be available up to 24
hours per day, 7 days per week.” Id. at 62,996.

    Labor likewise “adequately and reasonably justified its
decision not to consider” the Colorado survey of herders.
Association of Oil Pipe Lines v. FERC, 876 F.3d 336, 342
(D.C. Cir. 2017). While the agency recognized the herder
survey was “informative,” the agency ultimately concluded
                               23
that its numbers were not reliable because the data source was
“very limited,” covering only Colorado herders, and so was
“not representative of the industry as a whole.” 80 Fed. Reg.
at 62,996. Labor’s data showed that two States have more
than triple the number of sheep and goat herding employers as
Colorado, id. at 63,021, which is significant given that herding
needs vary based on terrain and climate. For those reasons,
Labor’s decision not to adopt data drawn from a single source
to establish a national standard falls within the bounds of
reasonableness. Labor adequately explained why it relied
instead on a comprehensive, nationwide set of employer-
reported data, and it sensibly addressed criticisms of the survey
head-on. The APA requires no more in this context.

                               2

     The Project separately argues that, in adopting the federal
minimum wage of $7.25 per hour for herders, Labor arbitrarily
disregarded evidence showing that similarly situated domestic
workers receive a higher wage. The Project also contends that
Labor unlawfully prioritized employers’ interests over those of
the herders. Neither challenge succeeds. Labor thoroughly
examined the issue before it and settled on a minimum-wage
rate that would be attractive to domestic workers without
capsizing the herding industry as a whole.

     The Immigration and Nationality Act charges the
Department of Labor with ensuring that “the wages and
working conditions” of United States workers will not be
“adversely affect[ed]” by the entry of H-2A workers who might
otherwise be employed at a lower cost.              8 U.S.C.
§ 1188(a)(1)(B).     To that end, the Labor Department
calculated an “Adverse Effect Wage Rate” that identified a
minimum wage for H-2A workers that would not adversely
affect the market for domestic workers. With respect to
                              24
herders, Labor initially proposed tying the Adverse Effect
Wage Rate to the “combined hourly wage rate for field and
livestock workers from the [Farm Labor Survey] used for all
other H-2A occupations.” 80 Fed. Reg. at 62,987. At that
time, the Farm Labor Survey’s hourly wage ranged from $10
to $13, depending on the State. Id. at 63,049. That would
have created a threefold increase in the pay herders had been
receiving. Id.

    Facing the prospect of wages “tripl[ing]” overnight,
herding employers, employer associations, State and local
government officials, and others with business interests in the
sheep industry submitted “hundreds” of comments attacking
the Farm Labor Survey rate, warning that adopting it would
“jeopardize the entire herding industry.” 80 Fed. Reg. at
62,988. The majority of the criticisms fell into two categories.

     First, many argued that the Farm Labor Survey was not an
appropriate metric due to herding’s unique characteristics.
Employers contended that livestock worker positions and
herders were not analogous because, unlike livestock and other
H-2A workers, employers paid for herders’ “food, housing,
work supplies, and protective clothing, and transportation.”
80 Fed. Reg. at 62,988; see also id. at 62,989 (Farmworker
positions “pay by the hour, and do not provide housing or food,
making those rates of pay completely inapposite to the range
production of livestock.”). In addition, employers suggested
that the intensity of work varied more for herders because they
were not necessarily “engage[d] in productive labor at all times
while on the range[.]” Id. at 62,988.

     Second, the industry pleaded that it was economically
unable to absorb the large and sudden increase in wages
proposed by Labor. Employers submitted extensive financial
statements and analyses asserting that adoption of the wage
                              25
increase would lead to downsizing or closed operations. See
80 Fed. Reg. at 62,988 (214 employers reported that they
would “downsize” or “shut down operations”; an employer
association represented that the wage increase would result in
an “80 percent reduction in profitability”). Employers also
said that, because of rigorous competition in the global market,
they would be hard-pressed to pass on cost increases to
consumers. These consequences, they continued, would not
just impact employers, but would also create “multiplier effects
in related industries,” such as “lamb processors, wool
warehouses, textile mills, trucking and feed companies,
veterinarians, and fencing businesses.” Id. (internal quotation
marks omitted).

    On the other side of the equation, the “few comments” in
favor of the Farm Labor Survey rate were “undetailed and
expressed only general support.” 80 Fed. Reg. at 62,990.
The most relevant and specific support contradicted the
industry statements, explaining that current farm and ranch
workers, who are covered by Farm Labor Survey wages, “may
also perform work that is closely and directly related to the
production of livestock” undertaken by herders.           Id.
Although Worker-Advocates for the herders largely supported
the Farm Labor Survey wage, they did not reject outright the
federal-minimum-wage measure that Labor ultimately
adopted. The Worker-Advocates’ Joint Comment on the
proposed rule acknowledged that the federal minimum wage of
$7.25 was “substantially higher than the [current] herder
minimum wage.” Id.

    After studying the comments and evaluating alternative
approaches, Labor’s final rule chose as the Adverse Effect
Wage Rate the federal minimum wage of $7.25 per hour, rather
than a rate based on the Farm Labor Survey. 80 Fed Reg. at
62,987. But Labor made explicit that, under the regulation,
                              26
the federal minimum wage of $7.25 per hour just established a
wage floor. 20 C.F.R. § 655.211(a). Employers were still
required to pay the highest of the monthly Adverse Effect
Wage Rate, an agreed-upon collective bargaining wage, or the
minimum wage established by applicable state law or judicial
action. 80 Fed. Reg. at 62,987.

     Labor reasoned that tying the baseline Adverse Effect
Wage Rate to the federal minimum wage fulfilled its statutory
mandate to protect United States workers because, if the higher
Farm Labor Survey rate had been adopted, it would have
“caus[ed] a substantial number of herding employers to close
or significantly downsize their operations—leaving fewer
herding jobs available to U.S. workers.” 80 Fed. Reg. at
62,990. Labor also emphasized that three of the four Mendoza
plaintiffs had attested that they would return to herding if
offered the federal minimum wage. 80 Fed. Reg. at 62,994.

     More to the point, Labor also presented evidence that, by
the time the two-year transitional period to the full minimum
wage was completed in 2018, herders across the country would
be earning a monthly wage almost on par with—or within one
to two hundred dollars of—the wage paid in States like
California, Oregon, and Hawaii, that have historically set high
minimum wages for herders under state law. Compare 80
Fed. Reg. at 63,026 (monthly wage in 2018 nationwide under
the federal minimum wage will be $1,568), with 80 Fed. Reg.
at 63,024 (2018 monthly wage in Oregon will be $1,679, in
Hawaii will likely be $1,422.52, and in California will be equal
to or more than $1,777.98).

     The record also shows that Labor did not just adopt
industry’s preferred outcome hook, line, and sinker. Labor
flatly rejected the employers’ proposal to preserve the same
wage rates set by the 2011 Guidance Letter, choosing instead
                               27
to impose a “significant wage increase on the industry” by
adopting the federal minimum wage. 80 Fed. Reg. at 62,991.
Labor explained that an increase was necessary because it
“would be unreasonable to conclude that wages [were] without
any influence on U.S. worker availability.” Id. at 62,992. As
Labor explained, compensation needed to “rise to attract more
workers where employers are experiencing a shortage of
available [domestic] workers * * *.” Id. at 62,992; see also id.
at 62,994 (rejecting the employers’ position because it was
“concerned that continued reliance on the [Guidance Letter]
wages, even in indexed form, would be inconsistent with
[Labor’s] obligation to protect against adverse effects on U.S.
workers”).

     The Project also expressed concern that paying herders
lower wages would incentivize employers to expand the
herders’ duties by squeezing unrelated activities into “range”
work, just to take advantage of lower costs, harming ranch
workers in the process. Project Br. 55. But Labor reasonably
addressed that concern, explaining that regulations separately
limit the “duties” herders can perform when working at the
ranch, making it less likely they can take over ranch workers’
tasks. In addition, herders are required to spend more than
half of their time away from the ranch “on the range.” 80 Fed.
Reg. at 62,991. Put simply, Labor concluded that the newly
imposed wage rate would not adversely affect ranch workers
because “ranch hands can perform a much broader array of
work duties,” so their positions were insulated from the effects
of herding wages. Id.

     At the end of the day, the question before this court is not
whether Labor adopted the best wage possible. It is only
whether Labor’s selection of the federal minimum wage falls
within the broad realm of reason, and whether Labor
sufficiently explained the basis for its judgment. Labor’s
                               28
decision crosses that threshold. The agency examined the data
before it, considered alternatives in light of the comments
received and its statutory mandate, and offered reasoned
explanations for both its conclusion and its rejection of viable
alternatives. Because the Department of Labor has “explained
its logic and the policies underlying its choices, we have no
basis for second-guessing its reasonable judgments.” North
America’s Bldg. Trades Unions v. OSHA, 878 F.3d 271, 303
(D.C. Cir. 2017). On that basis, we affirm the district court’s
judgment upholding the 2015 Rule’s minimum-wage
requirement as neither arbitrary nor capricious.

                                D

     Before closing the gate on this case, we must address the
Project’s request for a declaratory judgment proclaiming that
the Department of Labor’s 2011 Training and Employment
Guidance Letter for sheep and goat herders is substantively
invalid. Because that Guidance Letter has already been
vacated, the district court dismissed that claim for lack of
Article III standing.      We agree that the court lacked
jurisdiction over that claim.

     An indispensable component of federal court jurisdiction
in every case is that the plaintiff has Article III standing.
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). To
satisfy that constitutional standing requirement, a plaintiff must
establish a concrete and particularized invasion of a legally
protected interest that both is traceable to the defendant’s
challenged action and is “‘likely’ * * * [to] be ‘redressed by a
favorable decision.’” Id. at 560–561 (citation omitted).
When the injury is caused by a third party not involved in the
litigation, the plaintiff must establish that a favorable judicial
decision would cause “a significant increase in the likelihood”
that she would obtain “relief” for “the injury suffered.” Utah
                               29
v. Evans, 536 U.S. 452, 464 (2002); see also Lichoulas v.
FERC, 606 F.3d 769, 775 (D.C. Cir. 2010) (holding that a
judicial decision reversing an agency’s action would
“significantly increase the likelihood” that the plaintiff would
prevail in a separate court action against a different defendant).

     The Project argues that its challenge to the 2011 Guidance
Letter would strengthen its hand in state common-law quasi-
contract, unjust enrichment, and quantum meruit claims that
the Project has brought, on behalf of individual herders, against
their private employers. Second Am. Compl. ¶¶ 117–126.
More specifically, the Project claims that the wage terms in
their employment contracts, which were based on the then-in-
force 2011 Guidance Letter, should not be enforceable because
the Guidance Letter’s wage rate was substantively
unreasonable. As a result, the Project claims, the herders are
owed back pay or restitution. 6

     For purposes of standing, the Project has adequately
alleged an injury-in-fact in the form of unlawfully low wages.
Also, that injury is readily traceable to the wage rate set by the
Department of Labor in its 2011 Guidance Letter. Where the
Project runs into standing trouble is Article III’s requirement
that the injury be redressable by the court’s judgment. The
Project argues that “a judicial finding that [the Department of
Labor’s] implementation of the 2011 Rule violated the APA”
will buttress their claims for back pay in the separate common-
law litigation. Project Br. 56.

     The fly in the Project’s ointment is that this Court has
already held the 2011 Guidance Letter to be procedurally

    6
       These claims were transferred to the United States District
Court for the District of Colorado. Hispanic Affairs Project v.
Perez, No. 15-1785 (D. Colo. April 7, 2017), ECF No. 20.
                                30
invalid under the APA. See Mendoza, 754 F.3d at 1025 (“The
[Guidance Letter] [is a] legislative rule[] and the Department
of Labor violated the Administrative Procedure Act by
promulgating [it] without providing public notice and an
opportunity for comment.”). As a result, the 2011 Guidance
Letter was vacated on November 16, 2015. See ORDER,
Mendoza v. Perez, No. 11-1790 (D.D.C. Oct. 31, 2014), ECF
No. 54 at 1; 80 Fed. Reg. 62,958 (Oct. 16, 2015). That means
the 2011 Guidance Letter is already of no legal force or effect.

      Vacating again what has already been vacated before is not
likely to afford any additional redress for the Project’s or the
individual herders’ injuries at the hands of third-party
employers. To the extent the Project believes that invalidation
of the 2011 Guidance Letter will strengthen their argument in
other litigation that the prior wage rates were substantively
unreasonable, this court has already held that a court’s
procedural invalidation of a regulation can support a claim for
restitution. See Frederic County Fruit Growers Ass’n v.
Martin, 968 F.2d 1265, 1273 (D.C. Cir. 1992) (a claim for
restitution “can rest solely on the invalidation of a regulation
on a procedural, as opposed to a substantive, ground.”); id.
(listing cases where restitution was ordered after a rate increase
was found procedurally invalid). Because this court has
already ruled the 2011 Guidance Letter to be invalid and the
prior wage rates have already been vacated, the Project fails to
explain how another ruling about the Letter’s invalidity will
“significantly increase the likelihood” that it “prevail[s] in [its
private contract] challenges and therefore make[s] it more
likely that [the herders] will regain [backpay]” from the third-
party employers. Lichoulas, 606 F.3d at 775 (emphasis
added). Lacking jurisdiction to hear this claim, we dismiss it.

                          * * * * *
                               31
     For the foregoing reasons, we reverse the district court’s
holdings that (i) the Project had failed to timely preserve its
claim against the Department of Homeland Security’s alleged
policy or practice of routinely extending “temporary” visas for
lengthy periods, and (ii) the Project waived its challenge to the
Department of Labor’s 364-day certification regulation. We
remand those claims for further proceedings consistent with
this opinion. As to the remaining issues raised on appeal, we
affirm the district court’s judgment of dismissal.

                                                    So ordered.
