The H-2A visa program allows employers to hire foreign workers to perform agricultural labor when there are not enough qualified and available U.S. workers to fill open jobs. Under statute, DOL is only supposed to grant employers certifications to participate in the program where doing so would not “adversely affect the wages and working conditions” of U.S. workers. The principal H-2A wage protection is the Adverse Effect Wage Rate (AEWR), which DOL sets for each state based on regional average hourly wage rates for field and livestock workers combined, as determined by the USDA Farm Labor Survey (FLS). This minimum wage applies to both foreign and domestic farmworkers working for H-2A employers. The DOL has been using the FLS to set AEWRs for decades because it is a measure of the current market rate wage for farmworkers.
DOL recently issued a new rule that would freeze wages for 2021 and 2022 at the 2020 AEWRs (which are based on 2019 FLS wage data). In 2023 and later years, DOL would adjust the 2020 rates by using DOL’s more general Employment Cost Index (ECI) instead of the FLS. DOL acknowledged that ECI, a broad measure of labor wages that excludes agriculture, has been rising more slowly than farmworkers’ wages. Thus, the new rule undermines wage protection for U.S. and temporary foreign workers.
On behalf of four U.S. based farmworkers, and with our co-counsel from Texas RioGrande Legal Aid, we filed a lawsuit under the Administrative Procedure Act (APA) to challenge the new rule. We argue that the new rule is arbitrary and capricious, contrary to law, and was issued without adequate notice and opportunity for comment.