Date Announced

DOL issues final rule revising the methodology for determining the Adverse Effect Wage Rate (AEWR) for H-2A workers in non-range agricultural occupations. [ID #1154]

See Biden administration action below.

Effective Date of Change

Subsequent Action

DOL’s Employment and Training Administration issues implementation FAQs on the DOL H-2A final rule.

Subsequent Action

On November 30, 2020, United Farm Workers filed suit against the Department of Labor in the Eastern District of California, alleging that the DOL rule would "adversely affect" U.S. wage rates, a violation of the INA. According to UFW, the new formula for calculating wage rates would depress wages by 4% over 2 years, as compared with the current methodology. See United Farm Workers et al. v. U.S. Department of Labor et al., 1:20-cv-01690 (E.D. Cal., Nov. 30, 2020).

Subsequent Action

The Office of Foreign Labor Certification (OFLC) has created a new webpage consolidating AEWR information for the H-2A program. The webpage contains the monthly AEWR for range occupations, as well as the hourly AEWRs for non-range occupations. The hourly AEWRs for non-range occupations on the new webpage will apply to H-2A job orders submitted on or after December 21, 2020, when the final rule becomes effective.

Subsequent Action

U.S. District Court for Eastern District of California grants plaintiffs' motion for a preliminary injunction in United Farm Workers, et al. v. DOL, et. al., preventing the final rule on AEWR calculation from taking effect and requiring a timetable for promulgation of a new rule in accordance with legal requirements.

**Litigation is listed for informational purposes and is not comprehensive. For the current status of legal challenges, check other sources.**

Subsequent Action

In response to a 12/23/20 district court order in United Farm Workers, et al. v. DOL, et. al., that enjoined DOL from implementing the DOL Final Rule on Adverse Effect Wage Rate (AEWR) methodology for non-range H-2As (85 FR 70445), OFLC announced that H-2A job orders filed on or after 12/21/20 must use the AEWRs in effect on 12/20/20.

Subsequent Action

The Office of Foreign Labor Certification (OFLC) states that, in light of a January 12, 2021 supplemental order in the United Farm Workers et al. v. U.S. Department of Labor et al. litigation, all job orders filed on or after December 21, 2020 for H-2A labor certification applications must use the AEWR in effect prior to the challenged regulation until new AEWRs complying with the court's orders are published.

Biden Administration Action

A Biden administration action withdraws the Trump-era policy identified in the entry in ID #1167. That withdrawal may affect the policy identified in this entry.

On January 15, 2021, the U.S. Department of Labor (Department) announced and posted on the Office of Foreign Labor Certification’s website a forthcoming final rule, Temporary Agricultural Employment of H-2A Nonimmigrants in the United States (RIN 1205-AB89), pending publication in the Federal Register with a 30-day delayed effective date.  On January 20, 2021, the Department withdrew this document from the Office of the Federal Register prior to its publication for the purpose of reviewing issues of law, fact, and policy raised by the rule, and therefore it will not take effect. 

The Trump-era policy identified in this entry had been in a separate final rule published November 5, 2020, and bearing the same RIN number as the rule withdrawn by the Biden Administration. That November 5 rule was later enjoined. The now-withdrawn rule appeared to try to implement the November 5 approach but made no reference to the fact that the other rule had been enjoined.