The H-2A program authorizes the admission of nonimmigrant workers to perform agricultural labor on a temporary basis if the Department of Labor (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 workers the highest applicable wage, which is usually the Adverse Effect Wage Rate (AEWR), which DOL has set 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 will set the AEWR for such jobs using information from the Occupational Employment and Wage Statistics survey. The AEWR for field workers will continue to be based on the Farm Labor Survey.
Employers challenged the new rule and moved for a preliminary injunction to bar its enforcement. Representing two workers and the organization Farmworker Justice, we filed a motion for leave to file an amicus brief in support of DOL’s opposition to the employer’s motion. After the Court granted the motion, we filed our amicus brief, arguing 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.
In September 2023, the district court denied the motion for a preliminary injunction, finding that the plaintiffs were unlikely to succeed on their arguments that the rule exceeded statutory authority or that it was arbitrary and capricious. The employers appealed to the Fourth Circuit. In February 2024, we filed an amicus brief urging the Court of Appeals to affirm the district court’s decision.