Authorized by the Immigration and Nationality Act, 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 the program, the Department of Labor (DOL) may grant employers certifications to participate in the program only 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 U.S. Department of Agriculture’s Farm Labor Survey (FLS). This minimum wage applies to both foreign and domestic farmworkers working for H-2A employers. DOL has been using the FLS to set AEWRs for decades because it is a measure of the current market rate wage for farmworkers.
In November 2020, DOL published a final rule that would have radically altered how the AEWR is calculated. The new rule would have frozen wages for 2021 and 2022 at the 2020 AEWRs (which were based on 2019 FLS wage data). In 2023 and later years, DOL would have adjusted the 2020 rates by using DOL’s more general Employment Cost Index instead of the FLS. DOL acknowledged that this index – a broad measure of labor wages that excludes agriculture – has been rising more slowly than farmworkers’ wages. Thus, the new rule would have undermined wage protection for U.S. and temporary foreign workers.
On behalf of four U.S.–based farmworkers, and co-counseling with Texas RioGrande Legal Aid, Public Citizen filed a lawsuit under the Administrative Procedure Act (APA) to challenge the 2020 rule as arbitrary, capricious, and contrary to law, and on the ground that it was issued without adequate notice and opportunity for comment. Before the court ruled in our case, a court granted summary judgment for the plaintiffs and against DOL in a parallel case filed in another federal court, providing the same relief that we sought. We then voluntarily dismissed our case.