Notice2023-12896
Labor Certification Process for the Temporary Employment of Foreign Workers in Agriculture in the United States: Adverse Effect Wage Rate Updates for Non-Range Occupations
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
June 16, 2023
Effective
July 1, 2023
Issuing agencies
Labor DepartmentEmployment and Training Administration
Abstract
The Employment and Training Administration of the Department of Labor (DOL) is issuing this notice to announce updates to the Adverse Effect Wage Rates (AEWR) for the employment of temporary or seasonal nonimmigrant foreign workers (H-2A workers) to perform agricultural labor or services other than the herding or production of livestock on the range. AEWRs are the minimum wage rates DOL has determined must be offered, advertised in recruitment, and paid by employers to H-2A workers and workers in corresponding employment so that the wages and working conditions of workers in the United States (U.S.) similarly employed will not be adversely affected. In this notice, DOL announces the AEWRs based on wage data reported by DOL's Bureau of Labor Statistics (BLS) Occupational Employment and Wage Statistics (OEWS) survey. The AEWRs established in this notice are applicable to H-2A job opportunities classified: in Standard Occupational Classification (SOC) codes other than the six SOC codes comprising the field and livestock workers (combined) group, and in the field and livestock workers (combined) occupational group that are located in States or regions, or equivalent districts or territories, for which the United States Department of Agriculture's Farm Labor Report (better known as the Farm Labor Survey, or FLS) does not report a wage.
Full Text
<html>
<head>
<title>Federal Register, Volume 88 Issue 116 (Friday, June 16, 2023)</title>
</head>
<body><pre>
[Federal Register Volume 88, Number 116 (Friday, June 16, 2023)]
[Notices]
[Pages 39482-39483]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-12896]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF LABOR
Employment and Training Administration
Labor Certification Process for the Temporary Employment of
Foreign Workers in Agriculture in the United States: Adverse Effect
Wage Rate Updates for Non-Range Occupations
AGENCY: Employment and Training Administration, Department of Labor.
ACTION: Notice.
-----------------------------------------------------------------------
SUMMARY: The Employment and Training Administration of the Department
of Labor (DOL) is issuing this notice to announce updates to the
Adverse Effect Wage Rates (AEWR) for the employment of temporary or
seasonal nonimmigrant foreign workers (H-2A workers) to perform
agricultural labor or services other than the herding or production of
livestock on the range. AEWRs are the minimum wage rates DOL has
determined must be offered, advertised in recruitment, and paid by
employers to H-2A workers and workers in corresponding employment so
that the wages and working conditions of workers in the United States
(U.S.) similarly employed will not be adversely affected. In this
notice, DOL announces the AEWRs based on wage data reported by DOL's
Bureau of Labor Statistics (BLS) Occupational Employment and Wage
Statistics (OEWS) survey. The AEWRs established in this notice are
applicable to H-2A job opportunities classified: in Standard
Occupational Classification (SOC) codes other than the six SOC codes
comprising the field and livestock workers (combined) group, and in the
field and livestock workers (combined) occupational group that are
located in States or regions, or equivalent districts or territories,
for which the United States Department of Agriculture's Farm Labor
Report (better known as the Farm Labor Survey, or FLS) does not report
a wage.
DATES: These rates are effective July 1, 2023.
FOR FURTHER INFORMATION CONTACT: Brian Pasternak, Administrator, Office
of Foreign Labor Certification, Employment and Training Administration,
U.S. Department of Labor, 200 Constitution Avenue NW, Room N-5311,
Washington, DC 20210, telephone: (202) 693-8200 (this is not a toll-
free number). Individuals with hearing or speech impairments may access
the telephone numbers above via TTY/TDD by calling the toll-free
Federal Information Relay Service at 1 (877) 889-5627.
SUPPLEMENTARY INFORMATION: The U.S. Citizenship and Immigration
Services of the Department of Homeland Security will not approve an
employer's petition for the admission of H-2A nonimmigrant temporary
and seasonal agricultural workers in the U.S. unless the petitioner has
received an H-2A labor certification from DOL. DOL issues such labor
certification when it determines that: (1) there are not sufficient
U.S. workers who are able, willing, and qualified and who will be
available at the time and place needed to perform the labor or services
involved in the petition; and (2) the employment of the foreign
worker(s) in such labor or services will not adversely affect the wages
and working conditions of workers in the U.S. similarly employed. See 8
U.S.C. 1101(a)(15)(H)(ii)(a), 1184(c)(1), and 1188(a); 8 CFR
214.2(h)(5); 20 CFR 655.100.
DOL's H-2A regulations at 20 CFR 655.122(l) provide that employers
must pay their H-2A workers in non-range occupations \1\ and workers in
corresponding employment at least the highest of: (i) the AEWR; (ii) a
prevailing wage rate if the Office of Foreign Labor Certification
(OFLC) Administrator has approved a prevailing wage survey for the
applicable crop activity or agricultural activity and, if applicable, a
distinct work task or tasks performed in that activity; (iii) the
agreed-upon collective bargaining wage rate; (iv) the Federal minimum
wage rate; or (v) the State minimum wage rate, whichever is highest,
for every hour or portion thereof worked during
[[Page 39483]]
a pay period. Further, when the AEWR is updated during a work contract,
the employer must pay at least that updated AEWR upon the effective
date of the new rate, if the updated AEWR is higher than the highest of
the previous AEWR, a prevailing rate for the crop activity or
agricultural activity and, if applicable, a distinct work task or tasks
performed in that activity and geographic area, the agreed-upon
collective bargaining wage, the Federal minimum wage rate, or the State
minimum wage rate. See 20 CFR 655.120(b)(3). Similarly, when the AEWR
is updated during a work contract and is lower than the wage rate that
is guaranteed on the job order, the employer must continue to pay at
least the wage rate guaranteed on the job order. See 20 CFR
655.120(b)(4).
---------------------------------------------------------------------------
\1\ Range occupations (i.e., herding and production of livestock
on the range) are subject to 20 CFR 655.200 through 655.235, which
include a wage obligation provision at 20 CFR 655.210(g) and a
minimum monthly AEWR at 20 CFR 655.211.
---------------------------------------------------------------------------
On February 28, 2023, DOL published a final rule, Adverse Effect
Wage Rate Methodology for the Temporary Employment of H-2A
Nonimmigrants in Non-Range Occupations in the United States, 88 FR
12760 (Feb. 28, 2023), to establish a new methodology for setting
hourly AEWRs, effective March 30, 2023. Pursuant to this new rule,
while most AEWRs will continue to be based, as they have been since
1987, on the United States Department of Agriculture's (USDA) Farm
Labor Survey (FLS), these new OEWS-based AEWRs will apply to H-2A job
opportunities classified: (1) in SOC codes other than the six SOC codes
comprising the field and livestock workers (combined) group, and (2) in
the field and livestock workers (combined) occupational group that are
located in States or regions, or equivalent districts or territories,
for which the United States Department of Agriculture's Farm Labor
Report (better known as the FLS) does not report a wage.
The new final rule requires the OFLC Administrator to publish a
Federal Register notice at least once in each calendar year to
establish each AEWR. See 20 CFR 655.120(b)(2). The OFLC Administrator
provides this notice by publishing two separate announcements in the
Federal Register, one to update the AEWRs based on the wage data
reported by the USDA's FLS, effective on or about January 1, and a
second to update the AEWRs based on data reported by the BLS OEWS
survey, effective on or about July 1. See 88 FR at 12775.
OEWS-Based AEWR Updates
In accordance with 20 CFR 655.120(b)(1)(ii), AEWRs for agricultural
employment not represented by the six SOC codes comprising the field
and livestock worker (combined) group \2\ for which temporary H-2A
certification is being sought is determined using the statewide annual
average hourly gross wage for the SOC code for the State, or equivalent
district or territory, as reported by the OEWS survey. In the event the
OEWS survey does not report an average hourly gross wage for the SOC
code for the State, or equivalent district or territory, the AEWR is
determined using the national average hourly gross wage for the SOC as
reported by the OEWS survey.
---------------------------------------------------------------------------
\2\ The FLS survey's field and livestock workers (combined)
category reports aggregate wage data for the following six SOC
titles and codes: Farmworkers and Laborers, Crop, Nursery and
Greenhouse Workers (45-2092); Farmworkers, Farm, Ranch, and
Aquacultural Animals (45-2093); Agricultural Equipment Operators
(45-2091); Packers and Packagers, Hand (53-7064); Graders and
Sorters, Agricultural Products (45-2041); and All Other Agricultural
Workers (45-2099).
---------------------------------------------------------------------------
Using the most recently published OEWS survey,\3\ the OFLC
Administrator is publishing the statewide hourly AEWRs applicable to H-
2A job opportunities classified using an SOC code not included in the
field and livestock workers (combined) group.\4\ The hourly AEWRs
determined under 20 CFR 655.120(b)(1)(ii) are available for each SOC
code and geographic area at the following URL: <a href="https://flag.dol.gov/">https://flag.dol.gov/</a> gov/.
At the URL, DOL provides a searchable spreadsheet and other resources
that enable interested parties to search by State and SOC code for the
OEWS-based AEWR applicable to an H-2A job opportunity.
---------------------------------------------------------------------------
\3\ See Bureau of Labor Statistics, Occupational Employment and
Employment and Wage Statistics (OEWS) Report, OEWS Databases (Apr.
25, 2023), available at <a href="https://www.bls.gov/oes/data.htm">https://www.bls.gov/oes/data.htm</a>. Note that
the 2023 OEWS report is based on data from May 2022 OEWS estimates.
\4\ See 20 CFR 655.120(b)(1)(iii) (``For purposes of paragraphs
(b)(1)(i) and (ii) of this section, the term State and statewide
include the 50 States, the District of Columbia, Guam, Puerto Rico,
and the U.S. Virgin Islands.'')
---------------------------------------------------------------------------
In addition, where the FLS survey does not report an annual average
gross wage for the field and livestock workers (combined) group in a
State or region, or equivalent district or territory, the AEWRs
applicable to the field and livestock workers (combined) group is
established using the statewide annual average hourly gross wage for
the field and livestock workers (combined) group in the State, or
equivalent district or territory, as reported by the OEWS survey. See
20 CFR 655.120(b)(1)(i)(B). In the event the OEWS survey does not
report a statewide average hourly gross wage for the field and
livestock workers (combined) group for the State, or equivalent
district or territory, the AEWR is determined using the national
average hourly gross wage for field and livestock workers (combined)
group as reported by the OEWS survey. See 20 CFR 655.120(b)(1)(i)(C).
Using the most recently published OEWS survey, the OFLC
Administrator is publishing the hourly AEWRs applicable to H-2A job
opportunities classified in the field and livestock workers (combined)
group, in States or regions, or equivalent districts or territories,
where an annual average hourly gross wage is not reported by the FLS.
These hourly AEWRs are available at <a href="https://flag.dol.gov/">https://flag.dol.gov/</a> and in the
table below:
Table--Adverse Effect Wage Rates for Field and Livestock Workers
(Combined)
------------------------------------------------------------------------
State/District/Territory AEWRs
------------------------------------------------------------------------
Alaska.................................................. $18.02
District of Columbia.................................... 20.72
Guam.................................................... 10.12
Puerto Rico............................................. 9.70
U.S. Virgin Islands..................................... 13.95
------------------------------------------------------------------------
Authority: 20 CFR 655.120(b)(2); 20 CFR 655.103(b).
Brent Parton,
Acting Assistant Secretary for Employment and Training, Labor.
[FR Doc. 2023-12896 Filed 6-15-23; 8:45 am]
BILLING CODE 4510-FP-P
</pre></body>
</html>Indexed from Federal Register on June 16, 2023.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.