The Department of Labor (DOL) H-2A program authorizes the admission of nonimmigrant workers to perform agricultural labor on a temporary basis if DOL certifies that there are insufficient available workers within the United States to perform the job and that the employment of foreign workers will not adversely affect the wages and working conditions of similarly situated U.S. workers. To ensure that the H-2A program does not depress the wages of U.S. agricultural workers, DOL regulations require that employers pay the H-2A workers the highest applicable wage. That rate is usually the Adverse Effect Wage Rate (AEWR), which DOL sets using the annual Farm Labor Survey conducted by the Department of Agriculture.
In February 2023, DOL issued a new rule to fix a flaw in the prior rule that resulted in an adverse effect on the wages of U.S. farmworkers. Because the Farm Labor Survey reflects the wages of field workers but does not include information about the wages of workers in more specialized and generally higher-paying occupations, such as truck drivers, the new rule sets the AEWR for those occupations using information from the Occupational Employment and Wage Statistics survey. The AEWR for field workers continues to be based on the Farm Labor Survey.
Employers challenged the new rule and moved for a preliminary injunction to bar its enforcement. On behalf of two workers and the non-profit organization Farmworker Justice, we filed an amicus brief supporting DOL’s opposition to the employer’s motion. Our brief explains that the new rule is a reasonable approach to fulfill DOL’s statutory responsibility to ensure that the employment of H-2A workers will not depress the wages of U.S. workers similarly employed.