Rule2025-19365
Adverse Effect Wage Rate Methodology for the Temporary Employment of H-2A Nonimmigrants in Non-Range Occupations in the United States
Primary source
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Published
October 2, 2025
Effective
October 2, 2025
Issuing agencies
Labor DepartmentEmployment and Training Administration
Abstract
The Department of Labor (Department or DOL) is issuing this interim final rule (IFR) to amend its regulations governing the certification of agricultural labor or services to be performed by temporary foreign workers in H-2A nonimmigrant status (H-2A workers). Specifically, the Department is revising the methodology for determining the hourly Adverse Effect Wage Rates (AEWRs) for non-range occupations by using wage data reported for each U.S. state and territory by the Department's Bureau of Labor Statistics (BLS) Occupational Employment and Wage Statistics (OEWS) survey. For the vast majority of H-2A job opportunities, the Department will use OEWS survey data to establish AEWRs applicable to five Standard Occupational Classification (SOC) codes combining the most common field and livestock worker occupations previously measured by the U.S. Department of Agriculture's (USDA) Farm Labor Survey (FLS), which covered six SOC codes. These AEWRs will be divided into two skill-based categories to account for wage differentials arising from qualifications contained in the employer's job offer. For all other occupations, the Department will use the OEWS survey to determine two skill-based AEWRs for each SOC code to reflect wage differentials. The threshold determination for assigning the SOC code(s) and applicable skill-based AEWR will be based on the duties performed for the majority of the workdays during the contract period and qualifications contained in the employer's job offer. Finally, to address differences in compensation between most U.S. workers and H-2A workers who receive employer-provided housing at no cost, the Department will implement a standard adjustment factor to the AEWR to account for this non-monetary compensation that employers will apply when compensating H-2A workers under temporary agricultural labor certifications.
Full Text
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<title>Federal Register, Volume 90 Issue 189 (Thursday, October 2, 2025)</title>
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[Federal Register Volume 90, Number 189 (Thursday, October 2, 2025)]
[Rules and Regulations]
[Pages 47914-47963]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2025-19365]
[[Page 47913]]
Vol. 90
Thursday,
No. 189
October 2, 2025
Part II
Department of Labor
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Employment and Training Administration
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20 CFR Part 655
Adverse Effect Wage Rate Methodology for the Temporary Employment of H-
2A Nonimmigrants in Non-Range Occupations in the United States; Final
Rule
Federal Register / Vol. 90 , No. 189 / Thursday, October 2, 2025 /
Rules and Regulations
[[Page 47914]]
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DEPARTMENT OF LABOR
Employment and Training Administration
20 CFR Part 655
[DOL Docket No. ETA-2025-0008]
RIN 1205-AC24
Adverse Effect Wage Rate Methodology for the Temporary Employment
of H-2A Nonimmigrants in Non-Range Occupations in the United States
AGENCY: Employment and Training Administration, Department of Labor.
ACTION: Interim final rule, request for comments.
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SUMMARY: The Department of Labor (Department or DOL) is issuing this
interim final rule (IFR) to amend its regulations governing the
certification of agricultural labor or services to be performed by
temporary foreign workers in H-2A nonimmigrant status (H-2A workers).
Specifically, the Department is revising the methodology for
determining the hourly Adverse Effect Wage Rates (AEWRs) for non-range
occupations by using wage data reported for each U.S. state and
territory by the Department's Bureau of Labor Statistics (BLS)
Occupational Employment and Wage Statistics (OEWS) survey. For the vast
majority of H-2A job opportunities, the Department will use OEWS survey
data to establish AEWRs applicable to five Standard Occupational
Classification (SOC) codes combining the most common field and
livestock worker occupations previously measured by the U.S. Department
of Agriculture's (USDA) Farm Labor Survey (FLS), which covered six SOC
codes. These AEWRs will be divided into two skill-based categories to
account for wage differentials arising from qualifications contained in
the employer's job offer. For all other occupations, the Department
will use the OEWS survey to determine two skill-based AEWRs for each
SOC code to reflect wage differentials. The threshold determination for
assigning the SOC code(s) and applicable skill-based AEWR will be based
on the duties performed for the majority of the workdays during the
contract period and qualifications contained in the employer's job
offer. Finally, to address differences in compensation between most
U.S. workers and H-2A workers who receive employer-provided housing at
no cost, the Department will implement a standard adjustment factor to
the AEWR to account for this non-monetary compensation that employers
will apply when compensating H-2A workers under temporary agricultural
labor certifications.
DATES: This rule is effective October 2, 2025. Interested persons are
invited to submit written comments on this rule on or before December
1, 2025.
ADDRESSES: You may submit comments electronically by the following
method:
Federal eRulemaking Portal: <a href="https://www.regulations.gov">https://www.regulations.gov</a>. Follow the
instructions on the website for submitting comments.
Instructions: Comments should be confined to issues pertinent to
the interim final rule, identify the agency's name and public docket
number ETA-2025-0008, explain the reasons for any recommended changes,
and reference the specific section and wording being addressed, where
possible.
Please be advised that the Department will post comments received
that relate to this interim final rule to <a href="https://www.regulations.gov">https://www.regulations.gov</a>,
including any personal information provided. The <a href="https://www.regulations.gov">https://www.regulations.gov</a> website is the Federal e-Rulemaking Portal and all
comments posted there are available and accessible to the public.
Please do not submit comments containing trade secrets, confidential or
proprietary commercial or financial information, personal health
information, sensitive personally identifiable information (for
example, social security numbers, driver's license or state
identification numbers, passport numbers, or financial account
numbers), or other information that you do not want to be made
available to the public. Should the agency become aware of such
information, the agency reserves the right to redact or refrain from
posting sensitive information, libelous, or otherwise inappropriate
comments, including those that contain obscene, indecent, or profane
language; that contain threats or defamatory statements; or that
contain hate speech. Please note that depending on how information is
submitted, the agency may not be able to redact the information and
instead reserves the right to refrain from posting the information or
comment in such situations.
FOR FURTHER INFORMATION CONTACT: For further information regarding 20
CFR part 655, contact Brian Pasternak, Administrator, Office of Foreign
Labor Certification, Employment and Training Administration, Department
of Labor, 200 Constitution Avenue NW, Room N-5311, Washington, DC
20210, email: <a href="/cdn-cgi/l/email-protection#cf8089838ce19daaa8baa3aebba6a0a1bc8faba0a3e1a8a0b9"><span class="__cf_email__" data-cfemail="703f363c335e221517051c1104191f1e0330141f1c5e171f06">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background
A. Legal Authority
B. The Role of AEWRs in the H-2A Program
C. Brief History of AEWR Methodologies
D. Recent Rulemaking and Litigation
II. Good Cause Justification and Need for This IFR
A. The Good Cause Exception Under the APA, and the Two Separate
and Independently Sufficient Bases for the Department's Invocation
of the Good Cause Exception
B. First, The Good Cause Exception Is Independently Supported
Due to the Current Widespread and Novel Economic Hardship Faced by
the Regulated Community
1. Background Regarding the Labor Market for Agricultural Work
2. Economic Forecasting Regarding Food Prices and Availability
3. The Flaws in the AEWR Wage Policy That Restrict Labor Supply
and Need for a New AEWR Methodology
C. Second, The Good Cause Exception Is Separately and
Independently Supported by the Discontinuation of the FLS by the
Department of Agriculture and the Court Ordered Vacatur of the 2023
AEWR Final Rule
III. Implementation of This IFR
IV. Discussion of Changes to the AEWR Methodology
A. The Department Will Use the OEWS To Determine Skill-Based
AEWRs for all Job Opportunities
B. The Department Will Determine the AEWRs at Two Skill Levels
To Better Reflect the Average Wages Paid to U.S. Workers Similarly
Employed
C. The Department Will Assess the Duties and Qualifications of
the Employer's Job Offer When Assigning the Most Applicable SOC
Code(s) and Establishing the AEWR
1. Consideration of Duties Performed for the Majority of the
Workdays During the Contract Period
2. Additional Guidance on Assigning SOC Codes Based on the
Duties and Qualifications in the Employer's Job Opportunity
D. The Department Will Determine a Single AEWR Covering the Five
Most Common Field and Livestock Worker (Combined) Occupations
E. The Department Will Determine a SOC-Specific AEWR for all
Other Occupations
F. The Department Will Establish a Standard AEWR Adjustment To
Account for Non-Wage Compensation Benefits Provided to H-2A Workers
G. The Department Will Publish OEWS-Based AEWRs To Coincide With
the BLS Publication Schedule
H. The Department Requests Comments on All Aspects of Its
Revised Methodology for Establishing the AEWRs
V. Severability
VI. Administrative Information
A. Executive Orders 12866 and 13563
1. Introduction
2. Summary of the Analysis
3. Need for Regulation
[[Page 47915]]
4. Analysis
a. Analysis Considerations
b. Subject by Subject Analysis
c. Regulatory Alternatives
B. Regulatory Flexibility Analysis
1. Why Action Is Being Considered
2. Objective of the IFR
3. Data Used To Estimate the Impact on Small Entities
4. Regulatory Costs and Cost Savings
a. Familiarization With Regulatory Change
b. Cost Savings
5. Method Used To Estimate the Impact on Small Entities
6. Estimated Impact of the IFR on Small Entities
C. Review Under the Paperwork Reduction Act
D. Review Under Executive Order 13132
E. Executive Order 13175 (Consultation and Coordination With
Indian Tribal Governments)
F. Review Under Executive Order 12988
G. Review Under the Unfunded Mandates Reform Act
H. Review Under Executive Order 12630
I. Review Under the Treasury and General Government
Appropriations Act, 1999
J. Review Under the Treasury and General Government
Appropriations Act, 2001
Table of Acronyms and Abbreviations
AEWR Adverse Effect Wage Rate
ALS Agricultural Labor Survey
BLS Bureau of Labor Statistics
CFR Code of Federal Regulations
CO Certifying Officer
CPS Current Population Survey
CY calendar year
DHS U.S. Department of Homeland Security
DOL U.S. Department of Labor
DWL deadweight loss
E.O. Executive Order
ECI Employment Cost Index
ETA Employment and Training Administration
FLR Farm Labor Report
FLS Farm Labor Survey
FR Final Rule
FY Fiscal Year
GVW Gross Vehicle Weight
H-2ALC H-2A Labor Contractor
IFR Interim Final Rule
INA Immigration and Nationality Act
IRCA Immigration Reform and Control Act of 1986
NAICS North American Industry Classification System
NASS National Agricultural Statistics Service
NPC National Processing Center
NPRM Notice of Proposed Rulemaking
O*NET Occupational Information Network
OES Occupational Employment Statistics
OEWS Occupational Employment and Wage Statistics
OFLC Office of Foreign Labor Certification
OIRA Office of Information and Regulatory Affairs
OMB Office of Management and Budget
Pub. L. Public Law
RFA Regulatory Flexibility Act of 1980
RIA Regulatory impact analysis
SBA Small Business Administration
SOC Standard Occupational Classification
Stat. U.S. Statutes at Large
SWA State Workforce Agency
U.S. United States
U.S.C. United States Code
USCIS U.S. Citizenship and Immigration Service
USDA U.S. Department of Agriculture
WHD Wage and Hour Division
I. Introduction
A. Legal Authority
The Immigration and Nationality Act (INA), as amended by the
Immigration Reform and Control Act of 1986 (IRCA), establishes an ``H-
2A'' nonimmigrant visa classification for a worker ``having a residence
in a foreign country which he has no intention of abandoning who is
coming temporarily to the United States to perform agricultural labor
or services . . . of a temporary or seasonal nature.'' 8 U.S.C.
1101(a)(15)(H)(ii)(a); see also 8 U.S.C. 1184(c)(1) and 1188.\1\ The
term ``[a]gricultural labor or services'' includes the types of labor
and services ``defined by the Secretary of Labor in regulations,'' as
well as the Internal Revenue Code definition of ``agricultural labor''
at ``section 3121(g) of title 26,'' the Fair Labor Standards Act
definition of ``agriculture'' at ``section 203(f) of title 29,'' and
``the pressing of apples for cider on a farm . . . .'' 8 U.S.C.
1101(a)(15)(H)(ii)(a).
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\1\ For ease of reference, sections of the INA are referred to
by their corresponding section in the United States Code.
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The admission of foreign workers under this classification involves
a multistep process before several Federal agencies. A prospective H-2A
employer must first apply to the Secretary of Labor (Secretary) for a
certification that:
(A) there are not sufficient 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
(B) the employment of the alien in such labor or services will not
adversely affect the wages and working conditions of workers in the
United States similarly employed.
8 U.S.C. 1188(a)(1).
The INA prohibits the Secretary from issuing this certification--
known as a ``temporary labor certification''--unless both of the above
referenced conditions are met, and none of the conditions in 8 U.S.C.
1188(b) applies concerning strikes or lock-outs, labor certification
program debarments, workers' compensation assurances, and positive
recruitment.
The Secretary has delegated the authority to issue temporary
agricultural labor certifications to the Assistant Secretary for
Employment and Training, who in turn has delegated that authority to
ETA's Office of Foreign Labor Certification (OFLC).\2\ In addition, the
Secretary has delegated to the Department's Wage and Hour Division
(WHD) the responsibility under sec. 218(g)(2) of the INA, 8 U.S.C.
1188(g)(2), to assure employer compliance with the terms and conditions
of employment under the H-2A program.\3\ Since 1987, the Department has
operated the H-2A temporary agricultural labor certification program
under regulations promulgated pursuant to the INA. The standards and
procedures applicable to the certification and employment of workers
under the H-2A program are found at 20 CFR part 655, subpart B, and 29
CFR part 501.
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\2\ See Secretary's Order 06-2010 (Oct. 20, 2010), 75 FR 66268
(Oct. 27, 2010).
\3\ See Secretary's Order 01-2014 (Dec. 19, 2014), 79 FR 77527
(Dec. 24, 2014).
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When creating the H-2A visa classification, Congress charged the
Department with, among other things, regulating the employment of
nonimmigrant foreign workers in agriculture to guard against adverse
impact on the wages of agricultural workers in the United States
similarly employed. See 8 U.S.C. 1188(a)(1)(B). Congress, however, did
not ``define adverse effect and left it in the Department's discretion
how to ensure that the [employment] of farmworkers met the statutory
requirements'' while serving ``the interests of both farmworkers and
growers--which are often in tension.'' \4\ Thus, the Department has
discretion to determine the methodological approach that best allows it
to meet its statutory mandate.\5\
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\4\ AFL-CIO, et al. v. Dole, 923 F.2d 182, 184, 187 (D.C. Cir.
1991). See also Overdevest Nurseries v. Walsh, 2 F.4th 977, 984
(D.C. Cir. 2021) (finding reasonable the Department's definition of
``corresponding employment'' to prevent adverse effect on workers
similarly employed).
\5\ United Farmworkers v. Solis, 697 F. Supp. 2d 5, 8-11 (D.D.C.
2010).
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Since the Supreme Court's decision in Loper-Bright Enterprises, et
al. v. Raimondo, 603 U.S. 369 (2024), courts have consistently found
that the Department has discretion to determine the methods it uses to
carry out its mandate to prevent adverse effect. In Kansas, et al. v.
U.S. Department of Labor the district court noted the INA ``affords the
DOL considerable latitude to promulgate regulations that protect
American workers from being adversely affected by the issuance of H-2A
visas'' and that the Department's ``choice of [AEWR] methodology is
really a policy decision taken within the bounds of a rather broad
delegation.'' \6\ The court in
[[Page 47916]]
Teche Vermillion v. Sugar Cane Growers Ass'n Inc. v. Su similarly held
that the INA ``grants discretion to the DOL to implement a regulatory
regime to address'' adverse effect, does not ``define the term
`similarly employed,' '' and ``does not direct the DOL how to determine
whether the employment of an H-2A worker will `adversely affect' the
wages and working conditions of domestic workers'' similarly
employed.\7\ Thus in Teche the court found that the INA ``does not
dictate the methodology that the DOL must use to determine the AEWR or
otherwise limit the DOL to using a particular survey, such as the
FLS,'' and that ``[t]he only statutory constraints are the boundaries
set by section 1188(a)(1)(B).'' \8\ While reiterating the Department's
obligation to ``balance the competing goals of the statute--providing
an adequate labor supply and protecting the jobs of domestic workers,''
the ``choice of [AEWR] methodology . . .'' to achieve those twin aims
``is really a policy decision taken within the bounds of a rather broad
congressional delegation'' provided to the Department.\9\
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\6\ 749 F. Supp. 3d 1363, 1374-75 (S.D. Ga. 2024) (quoting Dole
at 187).
\7\ Teche Vermilion Sugar Cane Growers Ass'n Inc. v. Su, 749 F.
Supp. 3d 697, 723 (W.D. La. 2024), opinion clarified, No. 6:23-CV-
831, 2024 WL 4729319 (W.D. La. Nov. 7, 2024), and amended, No. 6:23-
CV-831, 2025 WL 1969937 (W.D. La. July 16, 2025).
\8\ Id. at 33.
\9\ Kansas, et al. v. U.S. Dep't of Labor, 749 F.Supp.3d 1363,
1374 (S.D. Ga., Aug. 26, 2024), citing AFL-CIO v. Dole, 923 F.2d
182, 187 (D.C. Cir. 1991).
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B. The Role of AEWRs in the H-2A Program
As explained in prior rulemakings, a ``basic Congressional premise
for temporary foreign worker programs . . . is that the unregulated use
of [nonimmigrant foreign workers] in agriculture would have an adverse
impact on the wages of U.S. workers, absent protection.'' \10\ The AEWR
is one of the primary ways the Department has historically met its
statutory obligation to certify that the employment of H-2A workers
will not have an adverse effect on the wages of agricultural workers in
the United States similarly employed, while ensuring that employers can
access legal agricultural labor. The AEWR is a regulatory mechanism to
prevent--not compensate for--adverse effects. The AEWR is not backward-
looking or remedial, meaning it is not ``predicated on the existence of
wage depression in the agricultural sector and [DOL] is not statutorily
required to identify existing wage suppression prior to establishing
and requiring employers to pay an AEWR.'' \11\
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\10\ 85 FR 70445, 70449 (Nov. 5, 2020) (citation omitted).
\11\ 85 FR at 70450; see also, e.g., 75 FR 6884, 6895 (Feb. 12,
2010) (reiterating justification for protection against future
adverse effect in 1989 rule); id. at 6891 (``By computing an AEWR to
approximate the equilibrium wages that would result absent an influx
of temporary foreign workers, the AEWR serves to put incumbent farm
workers in the position they would have been in but for the H-2A
program. In this sense, the AEWR avoids adverse effects . . .''); 73
FR 77110, 77167 (Dec. 18, 2008) (noting the D.C. Circuit observed
there is no ``statutory requirement to adjust for past wage
depression''); 54 FR at 28046-47 (Jul. 5, 1989) (``IRCA only
requires that the AEWR prevent future adverse effect from the use of
foreign workers, not compensate for past effect.'')
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Further, the INA does not require the Department to prove or rely
on the existence of past adverse effect but instead is focused on
prevent[ing] future adverse effect.\12\ Regardless ``of any past
adverse effect that the use of low-skilled foreign labor may or may not
have had on'' wages, the AEWR is necessary to satisfy the Department's
``forward-looking need to protect U.S. workers whose low skills make
them particularly vulnerable to even relatively mild--and thus very
difficult to capture empirically--wage stagnation or deflation.'' \13\
As the Department has noted in prior rulemaking, there is no ``reliable
method available'' to determine the existence of adverse effect in a
particular area and occupation or agricultural activity and the absence
of such a finding would not mean there has been no adverse effect, but
merely that ``imposition of the AEWR heretofore has been successful in
shielding domestic farm workers from the potentially wage depressing
effects of overly large numbers of temporary foreign workers'' into a
particular area.\14\
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\12\ See, e.g., 54 FR at 28046-47; 75 FR at 6895 (reiterating
justification for protection against future adverse effect in 1989
rule); 73 FR at 77167 (Dec. 18, 2008) (noting the D.C. Circuit
observed there is no ``statutory requirement to adjust for past wage
depression'').
\13\ 85 FR at 70450-70451.
\14\ Id. at 70451, citing 54 FR 28037, 28045 (July 5, 1989).
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In administering the H-2A program and carrying out the statutory
mandate to prevent adverse effect, the INA does not require the
Department to ``determine the AEWR at the highest conceivable point,
nor at the lowest, so long as it serves its purpose to guard against
adverse impact on the wages of agricultural workers in the United
States similarly employed.'' \15\ Rather, the `` `clear congressional
intent was to make the H-2A program usable, not to make U.S. producers
non-competitive' ''. `` `Unreasonably high AEWRs could endanger the
total U.S. domestic agribusiness, because the international competitive
position of U.S. agriculture is quite fragile.' '' \16\ The Department
must also consider factors relating to the sound and effective
administration of the H-2A program in deciding how to determine the
most reasonable methodology for establishing the AEWR to effectuate its
statutory mandate.\17\
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\15\ 88 FR 12760, 12761 (Feb. 28, 2023); see also 52 FR 11460,
11464 (Apr. 9, 1987) (``[T]he labor certification program is not the
appropriate means to escalate agricultural earnings above the
adverse effect level or to set an `attractive wage.' ''); Nat'l
Shooting Sports Found., Inc. v. Jones, 716 F.3d 200, 214-15 (D.C.
Cir. 2013) (noting that ``an agency has `wide discretion' in making
line-drawing decisions and `[t]he relevant question is whether the
agency's numbers are within a zone of reasonableness, not whether
its numbers are precisely right.' '') (quoting WorldCom, Inc. v.
FCC, 238 F.3d 449, 462 (D.C. Cir. 2001).
\16\ Id. at 12772 (quoting 54 FR 28037, 28046 (Jul. 5, 1989)).
\17\ 85 FR at 70450.
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C. Brief History of AEWR Methodologies
Concerns about the potential adverse impact resulting from a large
influx of temporary foreign workers, and development of methods to
determine and establish AEWRs to prevent it, date back to the
establishment of the Bracero Program and were at one point reflected in
international agreements that pre-date the 1986 IRCA.\18\ Since at
least 1953, ``employers seeking to import foreign nationals to work in
various crop activities (in that case, under the Bracero program) were
required to pay not less than a wage established by DOL.'' \19\ The
AEWR as a formal concept in the H-2 program was introduced in 1963, at
which point the AEWR initially was based on the Census of Agriculture's
average earnings for each state, which was conducted by the U.S. Census
Bureau and provided data for 11 East Coast H-2 user states and was
expanded and periodically adjusted thereafter.\20\ As time passed, the
establishment of AEWRs became more formalized, and AEWRs were computed
and set for the entire H-2 program, with corresponding public notice
and comment. See, e.g., 29 FR 19101-19102
[[Page 47917]]
(Dec. 30, 1964); 32 FR 4569, 4571 (Mar. 28, 1967); and 35 FR 12394-
12395 (Aug. 4, 1970).
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\18\ See 54 FR at 28039. The first Bracero Program allowed
farmers in the western United States to employ temporary foreign
workers from Mexico to work on farms and railroads beginning in May
1917. Under these agreements, employers were required to obtain a
certification from their local Employment Service office that there
were not sufficient U.S. workers to fill the jobs they offered, and
the contracts with Mexican workers had to offer the same wages that
were paid ``for similar labor in the community in which the admitted
aliens are to be employed.'' See Emergency Immigration Legislation:
Hearing before Committee on Immigration, United States Senate, 66th
Congress, Third Session, on H.R. 14461, 66 Cong. 3 (1921) (citing
Departmental Order of April 12, 1918, Concerning Admission of
Agricultural Laborers. U.S. Department of Labor, Bureau of
Immigration, Washington, April 12, 1918).
\19\ 54 FR at 28039.
\20\ Id. at 28040.
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Since 1987, following the IRCA amendments of 1986, the Department
has operated the H-2A program under regulations promulgated pursuant to
the INA and has, with brief interruption, set the AEWR for most
agricultural workers at the average wage paid to similarly employed
workers in a state or region, as determined by the USDA Farm Labor
Survey (FLS). For more than two decades after IRCA, the Department's
1989 Final Rule governed the H-2A program.\21\ The 1989 Final Rule
``dramatically expanded the use of the AEWR as a wage protection in the
H-2A program in 49 States (excluding Alaska) and first began using the
FLS to set the AEWR'' as the average wage of farmworkers, which is the
method still in use for most H-2A job opportunities.\22\ This
methodology was selected after a thorough consideration of alternatives
and litigation directing the Department to provide a reasoned
explanation for the chosen AEWR methodology.\23\ The Department noted
that the use of the FLS to set statewide AEWRs based on actual earnings
of similarly employed workers was preferable to the prior method of
basing AEWRs on the 1950s Census of Agriculture ``that had been
adjusted upward by various methods over the years.'' \24\
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\21\ See id. at 28037.
\22\ 84 FR 36168, 36186 (Jun. 26, 2019).
\23\ See 54 FR at 28038 (discussing the Department's 1987 IFR
methodology and related litigation and subsequent rounds of
rulemaking to determine a reasoned AEWR methodology); See also 52 FR
20496 (Jun. 1, 1987) (1987 H-2A IFR); AFL-CIO v. Brock, 835 F.2d
912, 915 (D.C. Cir. 1987).
\24\ Id. at 28039.
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For a brief period, under a 2008 final rule (73 FR 77110), the
Department determined the AEWR to be based on the OEWS survey. The
Department explained that under that rule, the AEWR was set ``using the
[SOC] taxonomy'' to ``set a different AEWR for each SOC [occupation]
and localized area of intended employment.'' \25\ The Department also
set the wage for each job opportunity at one of multiple wage levels
``intended to reflect education and training,'' similar to the
Congressionally-mandated prevailing wage methodology in the H-1B
program.\26\ The Department suspended this rule in 2009 citing
administrative challenges and concerns that U.S. workers may in the
future experience wage depression as a result of unchecked expansion of
the demand for foreign workers.\27\ Under the 2010 final rule (75 FR
6884), which has governed the program for more than a decade at various
intervals, the Department returned to use of the FLS hourly wage data
to determine the AEWR for field and livestock workers (combined), and
produced ``a single AEWR for all agricultural workers in a State or
region, without regard to SOC code, and no AEWR in geographic areas not
surveyed'' (e.g., Alaska and Puerto Rico).\28\
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\25\ 84 FR at 36180.
\26\ Id.
\27\ 74 FR 45906 (Sep. 4, 2009).
\28\ 88 FR at 12793-12794.
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In response to public comments on previous proposed rules related
to the methodology for determining the AEWRs, the Department considered
and rejected several alternative methodologies, including: adding an
enhancement to the USDA average wage; \29\ tying the AEWR to an index
like the Consumer Price Index or Employment Cost Index; \30\ using
various methods of setting AEWRs based on a uniform minimum wage
untethered to labor market data, such as an enhanced federal minimum
wage; \31\ eliminating AEWRs and instead using only prevailing wages
based on specific crop activities; \32\ setting a cap or ceiling on the
AEWR employers must pay; \33\ and using the highest AEWR among those
reported by the FLS and OEWS at the local, state, and national
levels,\34\ among other suggested alternative methods.
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\29\ See, e.g., 54 FR at 28045, 28046-47, 28051 (rejecting use
of an enhanced wage methodology for foreign workers because, absent
data indicating a need to correct wage suppression, it could be
inflationary and beyond the Department's authority.).
\30\ See, e.g., 85 FR at 70455 (rejecting use of the CPI because
it measured changes in consumer prices, not changes in wages); 88 FR
at 12773 (rejecting use of the ECI ``or other broad indices''
because they would provide only ``a general measure of changes in
the cost of labor across the private sector,'' rather than ``actual
wage data for agricultural workers in particular geographic
areas.'').
\31\ See, e.g., 88 FR at 12773 (rejecting use of a minimum wage
or an enhanced minimum wage because these ``predetermined wages
would be untethered from data on wages employers pay to'' similarly
employed workers and the method would ``immediately and dramatically
reduce the wages of many H-2A and similarly employed workers . . .);
73 FR 77110, 77172 (Dec. 18, 2008) (rejecting a national uniform
wage because it would ``not reflect market wages'' and ``would prove
to be below market rates in some areas and above market rates in
other areas.'').
\32\ See, e.g., 54 FR at 28045, 28047 (rejecting use only of a
crop-specific minimum wage and stating an average AEWR wage is
necessary to address ``pockets of past adverse effect'' that are
difficult to measure but may persist); 88 FR at 12768 (Feb. 28,
2023) (rejecting similar methods for similar reasons, and noting the
AEWR functions as ``a prevailing wage defined over a broader
geographic area and over a broader occupational span''); See also 87
FR 61660, 61687, 61701 (Oct. 12, 2022) (explaining prevailing wage
rates are not available for all crop activities and locations in
every year and the Department will not issue a specific prevailing
wage determination where a compliant state-issued survey prevailing
wage is unavailable).
\33\ See, e.g., 88 FR at 12773 (noting capped AEWRs would not
reflect actual wage changes and ``imposition of such a cap would
produce wage stagnation'' especially ``in years when the wages of
agricultural workers are rising faster . . .'').
\34\ See, e.g., 88 FR at 12773-12774 (rejecting this method
because it would increase regulatory complexity and unpredictability
and would arbitrarily impose a wage that is highest among multiple
data sources when the Department's preferred sources are available,
without noting flaws in the methodology of the preferred sources or
explaining how other sources would produce a more accurate wage,
which may result in employers paying an ``enhanced wage untethered
to the best available information . . .'' and ``place unnecessary
upward pressure on wages . . .'').
---------------------------------------------------------------------------
D. Recent Rulemaking and Litigation
As part of a comprehensive NPRM published in 2019, the Department
proposed to establish occupation-specific statewide hourly AEWRs for
non-range occupations (i.e., all occupations other than herding and
production of livestock on the range) using data reported by FLS for
the SOC code in the State or region, if available, or data reported by
the OES (now OEWS) survey for the SOC code in the State, if FLS data in
the State or region was not available.\35\ The Department explained
that establishing AEWRs based on data more specific to the agricultural
services or labor being performed under the SOC system would better
protect against adverse effect on the wages of agricultural workers in
the United States similarly employed. The Department expressed concern
that the AEWR methodology under the 2010 Final Rule could have an
adverse effect on the wages of workers in higher paid agricultural SOC
codes, such as supervisors of farmworkers and construction laborers,
whose wages may be inappropriately lowered by use of a single hourly
AEWR based on the wage data collected for the six SOC codes covering
field and livestock workers (combined) when the essence of the
employer's job opportunity is equivalent to and should be treated like
other jobs in the higher paid occupations outside of the field and
livestock workers (combined) category.\36\
---------------------------------------------------------------------------
\35\ See 84 FR at 36171 (Jul. 26, 2019).
\36\ See 84 FR at 36180-36185.
---------------------------------------------------------------------------
On September 30, 2020, USDA announced its intent to discontinue the
FLS and that it would not publish the FLS in November 2020. Litigation
challenging USDA's cancellation of the FLS data collection and November
annual report publication followed and,
[[Page 47918]]
on October 28, 2020, in United Farm Workers, et al. v. Perdue, et al.,
No. 20-cv-01452 (E.D. Cal. filed Oct. 13, 2020), the court
preliminarily enjoined USDA from giving effect to its decision to
cancel the October 2020 FLS data collection and cancel its November
2020 publication of the FLS.\37\ In light of USDA's action and
subsequent litigation over the announcement, the Department determined
it was necessary to bifurcate the 2019 H-2A NPRM's proposals and
published an AEWR final rule on November 5, 2020 (2020 AEWR Final
Rule), to establish a new hourly AEWR methodology with an effective
date of December 21, 2020.\38\
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\37\ United Farm Workers, et al. v. U.S. Dep't. of Labor, et
al., 598 F.Supp.3d 878, 888 (E.D. Cal. Apr. 1, 2022); see also
United Farm Workers, et al. v. U.S. Dep't of Labor, et al., 509
F.Supp.3d 1225, 1255 (E.D. Cal. Dec. 23, 2020) (enjoining the
Department from implementing the November 2020 Final Rule).
\38\ Final Rule, Adverse Effect Wage Rate Methodology for the
Temporary Employment of H-2A Nonimmigrants in Non-Range Occupations
in the United States, 85 FR 70445, 70447-70465 (Nov. 5, 2020).
---------------------------------------------------------------------------
Under the 2020 AEWR Final Rule, the Department used the 2019 USDA
FLS wage report as the baseline for establishing the 2021 AEWRs for all
field and livestock workers (combined) occupations in all states with
annual wage data except Alaska, which constituted more than 95 percent
of H-2A job opportunities. After a two-year ``freeze,'' these AEWRs
would then be adjusted annually based on the 12-month percent change in
the BLS Employment Cost Index (ECI) beginning in 2023; an index the
Department continues to use to adjust the monthly AEWR for job
opportunities in the herding or production of livestock on the range.
For all other occupations and geographic areas not covered in the FLS
report (i.e., Alaska and U.S. territories), the 2020 AEWR Final Rule
set AEWRs using the statewide average hourly gross wage for the
occupation, as reported by the BLS OEWS survey at the state or national
level. If the job opportunity is classified in more than one SOC system
code, the AEWR will be the highest rate among the applicable
occupational codes.
The Department's 2020 AEWR Final Rule was challenged in United Farm
Workers, et al. v. Dep't of Labor, et al., No. 20-cv-01690 (E.D. Cal.
filed Nov. 30, 2020). The 2020 AEWR Final Rule was enjoined and
subsequently vacated and remanded to the Department for further
rulemaking consistent with the court's opinion.\39\ As a result of this
litigation, the Department reverted back to the methodology used in the
2010 H-2A Final Rule and continued to do so until February 28, 2023,
when the Department published the 2023 AEWR Final Rule (2023 AEWR Final
Rule).\40\
---------------------------------------------------------------------------
\39\ Id.
\40\ 88 FR 12760.
---------------------------------------------------------------------------
Under the 2023 AEWR Final Rule, the Department established the
AEWRs based on the annual average hourly gross wage in the State or
region reported from the USDA FLS or the BLS OEWS survey. The
Department adjusted the AEWRs for each State or region at least once in
each calendar year. The OFLC Administrator published an announcement in
the Federal Register to update the AEWRs based on the FLS, effective on
or about January 1, and a separate announcement in the Federal Register
to update the AEWRs based on the OEWS survey, effective on or about
July 1.
The Department determined the AEWR for the six most common
occupations--those within the FLS field and livestock workers
(combined) category \41\--using, as its primary wage source, the annual
average gross hourly wage reported by the FLS for the State or region.
Hourly wage rates were calculated based on employers' reports of total
wages paid and total hours worked for all hired workers during a
particular survey reference week each quarter. In the event the FLS
could not report the annual average hourly gross wage for the field and
livestock workers (combined) category in a particular geographic area
(e.g., in Alaska, which is not covered in FLS data) or in the
unanticipated circumstance that the FLS survey became unavailable
(e.g., suspension of the survey), the Department would use, as its
secondary source, the OEWS to determine a statewide AEWR for the field
and livestock workers (combined) category. In circumstances where
neither the FLS nor the OEWS survey reports a statewide annual average
hourly gross wage for the field and livestock workers (combined)
category in a particular State, or equivalent district or territory,
the Department used the OEWS survey's national annual average hourly
gross wage for the field and livestock workers (combined) category to
determine the AEWR in that State.
---------------------------------------------------------------------------
\41\ This currently includes the following `big six' SOC
occupational titles and codes: Farmworkers and Laborers, Crop,
Nursery and Greenhouse (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 Agricultural Workers,
All Other (45-2099).
---------------------------------------------------------------------------
For H-2A job opportunities that do not fall within the FLS field
and livestock workers (combined) category, the Department used only the
OEWS survey to determine SOC-specific AEWRs. Under this methodology,
the AEWR for all non-range SOC codes outside the field and livestock
workers (combined) category were computed as the statewide annual
average hourly gross wage for the SOC code, as reported by the OEWS
survey. If the OEWS survey did not report a statewide annual average
hourly gross wage for the SOC code, the AEWR for that State was
determined as the national annual average hourly gross wage for the SOC
code, as reported by the OEWS survey.
The 2023 AEWR Final Rule also required employers to pay the highest
of all applicable AEWRs for job opportunities involving a combination
of duties within multiple occupations, regardless of the amount of time
a worker may spend performing such duties. Although the vast majority
of H-2A job opportunities fall within the FLS field and livestock
workers (combined) category and are subject to the single statewide
AEWR determination, some H-2A job opportunities include duties that
fall both within and outside of that category. In these circumstances
and no matter how often a particular duty or work task is performed,
the Department determined the AEWR based on the highest of the
applicable FLS and OEWS rates that employers were required to
advertise, offer, and pay for the entire work contract period.
Since its implementation on March 30, 2023, the Department has
litigated substantive issues raised in lawsuits across several district
courts challenging the methodology contained in the 2023 AEWR Final
Rule. Generally, plaintiffs in these litigation matters claim that the
methodology contained in the 2023 AEWR Final Rule exceeds the
Department's statutory authority and is arbitrary and capricious. In
USA Farm Labor, Inc., et al. v. Su, et al., No. 1:23-cv-00096 (W.D.
N.C. filed June 28, 2023), the plaintiffs include a group of 23 mostly
small farms and agricultural businesses and one H-2A filing agent
asserting that the Department violated the Administrative Procedure Act
(APA) and that the 2023 AEWR Final Rule was arbitrary and capricious
for the following reasons: (1) the Department exceeded its statutory
authority in treating agricultural positions as being ``similar'' to
nonagricultural positions for purposes of determining the AEWRs; (2)
the Department failed to consider what a worker's primary job duties
are in determining the AEWR in favor of a combination of duties rule
where even minor or intermittent job duties would shift the
determination from an FLS-based AEWR to an OEWS-based AEWR;
[[Page 47919]]
and (3) the Department failed to consider the effect its chosen AEWR
methodology will have on food prices and rule's effect on illegal
immigration. Although plaintiffs' motion for a preliminary injunction
was denied by the district court, the lawsuit remains an active appeal
in the Fourth Circuit.
In Florida Growers Association, Inc. et al. (FGA),\42\ the
plaintiffs included a group of small farms, one national association,
and several Florida grower associations. In their complaint, plaintiffs
asserted that the Department violated the APA and that the 2023 AEWR
Final Rule was arbitrary and capricious for the following reasons: (1)
the Department impermissibly used OEWS-based AEWRs for jobs involving a
``mix of duties'' falling both inside and outside of the FLS combined
field and livestock workers category for the purpose of attracting U.S.
workers to these job opportunities, rather than to prevent an adverse
effect on the pay of similarly employed U.S. workers; (2) the
Department should have confined its use of OEWS data by examining the
primary or main duties of the work to be performed or, alternatively,
applying the applicable wage to the specific work considered to be
similar employment, rather than the highest applicable AEWR to all
workers at all times under the contract; and (3) the USDA FLS data is
flawed in that it includes total compensation paid by a farm, including
overtime, Christmas or birthday bonuses, and piece-rate payments,
rather than straight hourly rates, does not include farm labor
contractors, and fails to consider non-wage expenses of H-2A employers
that the Department requires them to provide, including but not limited
to, international and local transportation and employer-provided
housing. Based on testimony provided by expert economists, the
plaintiffs further asserted that the FLS-based data provides an
accurate count of the number of persons employed in agriculture and the
average wage rate across all skill levels and occupations, but fails to
provide an appropriate entry-level or starting wage for H-2A
employment.\43\ After the court denied plaintiffs' motion for
preliminary injunction, the case was briefed for summary judgment but
later stayed pursuant to the Department's motion.\44\
---------------------------------------------------------------------------
\42\ Florida Growers Ass'n, Inc., et al. v. Su, No. 8:23-cv-
00889-CEH-CPT (M.D. Fla. 2024).
\43\ Complaint, Florida Growers Ass'n, Inc., et al. v. Su, No.
8:23-cv-00889-CEH-CPT (M.D. Fla. Apr. 21, 2023), ECF No. 1.
\44\ Id. at ECF No. 105.
---------------------------------------------------------------------------
In Teche Vermilion Sugar Cane Growers Assoc. Inc., (Teche
Vermilion),\45\ the plaintiffs included two agricultural associations,
a trade association, three farming businesses, and an individual owner
and operator of two farms seeking preliminary and permanent injunctive
relief against the rule's application and enforcement. In their
complaint, the plaintiffs asserted that the Department exceeded its
statutory authority and the 2023 AEWR Final Rule is arbitrary and
capricious under the APA because the rule: (1) required employers to
pay some H-2A workers' wages based on allegedly higher rates for ``non-
farm'' U.S. workers not similarly employed; (2) failed to adequately
address the rule's economic impact on small business, or consider other
alternatives, under the Regulatory Flexibility Act (RFA); and (3)
violated the Congressional Review Act mandate that the Department
submit a rule exceeding an alleged $100 million in economic impact to
Congress at least 60 days prior to its effective date. On September 18,
2024, the district court issued a preliminary injunction enjoining the
Department from applying the 2023 AEWR Final Rule to the named
plaintiffs and members of the association plaintiffs with respect to
the hiring of H-2A workers who grow, harvest, and process sugar cane in
Louisiana. In its ruling, the court stated that it cannot conclude that
the Department's ``use of non-farm wage surveys, such as the OEWS, to
supplement data from the FLS in setting the AEWR for H-2A workers
exceeds the DOL's statutory authority as long as its methodology is
based on workers who are `similarly employed.' '' \46\ However, the
Court further noted that the Department failed to consider or
adequately explain the basis for assigning the AEWR for non-farm heavy
and tractor-trailer truck drivers to H-2A workers engaged in driving
sugarcane trucks, including failing to assess any ``differences in the
`work performed, skills, education, training, and credentials' of these
two groups of workers.'' \47\ On August 21, 2025, plaintiffs in Teche
Vermilion filed a Motion for Entry of Final Judgment requesting that
the court convert its preliminary injunction into a final judgment and
to accordingly vacate the 2023 AEWR Final Rule.\48\ On August 25, 2025,
the Western District of Louisiana granted plaintiffs' unopposed Motion
for Entry of Final Judgment and ordered the 2023 AEWR Final Rule
vacated.\49\ As a result of the 2023 AEWR Final Rule being vacated, the
Department currently establishes a single AEWR for each state and
covering all H-2A job opportunities, except Alaska and the U.S.
territories, using the 2010 final rule methodology that is based solely
on the FLS hourly wage data for field and livestock workers (combined).
On August 28, 2025, the Department published a notice on the OFLC
website announcing the court's vacatur and stating that the AEWRs for
all H-2A job opportunities will be set according to the methodology set
forth in the 2010 final rule.
---------------------------------------------------------------------------
\45\ Teche Vermilion Sugar Cane Growers Ass'n Inc. v. Su, No.
6:23-CV-831 (W.D. La. 2023).
\46\ Teche Vermilion Sugar Cane Growers Ass'n Inc. v. Su, 749 F.
Supp. 3d 697 (W.D. La. 2024), opinion clarified, No. 6:23-CV-831,
2024 WL 4729319 (W.D. La. Nov. 7, 2024), and amended, No. 6:23-CV-
831, 2025 WL 1969937 (W.D. La. July 16, 2025).
\47\ Id. at 730-731.
\48\ Motion For Entry of Final Judgment, Teche Vermilion Sugar
Cane Growers Ass'n Inc. v. Su, No. 6:23-cv-00831-RRS-CBW (W.D. La.
Aug. 21, 2025), ECF No. 86.
\49\ Judgment, Teche Vermilion Sugar Cane Growers Ass'n Inc. v.
Su, No. 6:23-cv-00831-RRS-CBW (W.D. La. Aug. 21, 2025), ECF No. 87.
---------------------------------------------------------------------------
II. Good Cause Justification and Need for This IFR
A. The Good Cause Exception Under the APA, and the Two Separate and
Independent Bases for the Department's Invocation of the Good Cause
Exception
The Administrative Procedure Act (APA) provides an exception to
ordinary notice-and-comment procedures ``when the agency for good cause
finds (and incorporates the finding and a brief statement of reasons
therefor in the rules issued) that notice and public procedure thereon
are impracticable, unnecessary, or contrary to the public interest.'' 5
U.S.C. 553(b)(B). See also 5 U.S.C. 553(d)(3) (creating an exception to
the requirement of a 30-day delay before the effective date of a rule
``for good cause found and published with the rule''). Generally, the
good cause exception for forgoing notice and comment rulemaking
``excuses notice and comment in emergency situations, or where delay
could result in serious harm.'' \50\ While emergency situations are the
most common circumstances in which the good cause exception is invoked,
the infliction of real harm that would result from delayed action even
absent an emergency can be sufficient grounds to issue a rule without
undergoing prior notice and comment.\51\
[[Page 47920]]
And, as the D.C. Circuit noted, economic harm may be a basis on which
the good cause exception may be invoked.\52\
---------------------------------------------------------------------------
\50\ Jifry v. FAA, 370 F.3d 1174, 1179 (D.C. Cir. 2004); see
also U.S. Corp. v. U.S. E.P.A., 595 F.2d 207, 214 (5th Cir. 1979)
(``It is an important safety valve to be used where delay would do
real harm.'').
\51\ Nat. Res. Def. Council, Inc. v. Evans, 316 F.3d 904, 911
(9th Cir. 2003) (``[W]e have observed that notice and comment
procedures should be waived only when `delay would do real harm.' .
. . `Emergencies, though not the only situations constituting good
cause, are the most common.' '') (citations omitted); see also
Buschmann v. Schweiker, 676 F.2d 352, 357 (9th Cir. 1982) (``The
notice and comment procedures in Section 553 should be waived only
when `delay would do real harm' . . . The good cause exception is
essentially an emergency procedure.'') (citations omitted).
\52\ Sorenson Commc'ns v. F.C.C., 755 F.3d 702, 707 (D.C. Cir.
2014).
---------------------------------------------------------------------------
First, the Department has good cause to forgo the APA's notice-and-
comment procedures and delayed effective date requirements under the
``public interest'' prong. Under the ``public interest'' prong of the
good cause exception, ``the question is not whether dispensing with
notice and comment would be contrary to the public interest, but
whether providing notice and comment would be contrary to the public
interest.'' \53\ This prong applies here because, as is explained in
detail hereinafter, at Section II.B, the lack of a reasonable and
viable AEWR methodology, when combined with the current and imminent
labor shortage exacerbated by the near total cessation of the inflow of
illegal aliens, increased enforcement of existing immigration law, and
global competitiveness pressures described below, presents a sufficient
risk of supply shock-induced food shortages to justify immediate
implementation of this IFR (with a subsequent ``final'' final rule to
follow the comment period).
---------------------------------------------------------------------------
\53\ Mack Trucks, Inc. v. EPA, 682 F.3d 87, 95 (D.C. Cir. 2012).
---------------------------------------------------------------------------
There is ample data showing immediate dangers to the American food
supply. The methodology for calculating AEWRs in the vacated 2023 AEWR
Final Rule and even under current 2010 final rule, both of which used a
single average gross hourly wage for the vast majority of H-2A jobs
without regard to the qualifications of the employer's job offer or how
much time a worker spends performing specific duties during a work
contract period poses an imminent risk to the supply of agricultural
labor by setting unreasonably high price floors on labor. This IFR
addresses and solves this imminent threat by implementing an AEWR
methodology that results in more precise market-based price floors that
still serves its statutory function of protecting American workers, but
also, ensures that American supermarkets and U.S. consumers will have
access to safe, affordable and American-grown produce.
These types of risks to the American food supply have supported
good cause in the past and support them now.\54\ As explained in detail
below, any delay in implementing this revised AEWR policy would cause
or exacerbate imminent and significant economic harm to employers in
the U.S. agricultural sector, to authorized U.S. workers performing
agricultural labor, and to U.S. consumers of domestic agricultural
crops and commodities. Employers in the U.S. agricultural sector are
facing a structural, not cyclical, workforce crisis driven by both the
lack of an available legal workforce that is relatively mobile and able
to adjust to changes in labor demands as well as an ever hastening loss
of the mobile illegal alien workforce that had flowed in and out of the
United States through a previously porous border.\55\ Nationwide
illegal crossings are now at a rate 93% lower than the peak level
reached during the prior four years, a rate that has held steady since
June of 2025. As discussed below and based on the Department's most
recent NAWS data on U.S. crop workers, much of this illegal inflow
artificially boosted the supply of labor at relatively lower costs
compared to the labor costs associated with a legal workforce. The near
total cessation of the inflow of illegal aliens combined with the lack
of an available legal workforce, results in significant disruptions to
production costs and threatening the stability of domestic food
production and prices for U.S consumers. Unless the Department acts
immediately to provide a source of stable and lawful labor, this threat
will grow as the tools Congress provided in H.R. 1, One Big Beautiful
Bill Act, to enhance enforcement of the nation's immigration laws are
deployed.
---------------------------------------------------------------------------
\54\ See e.g., Friendship Dairies, Inc. v. Butz, 432 F. Supp.
508, 513 (E.D.N.Y.), aff'd, 573 F.2d 1290 (2d Cir. 1977) (finding
that 10% increase in price of milk, among other things, was
sufficient to support good cause because it evinced ``substantial
evidence of the serious problems confronting producers in the Order
No. 2 area and of the potential for disruption of normal marketing
channels . . . If the trend were allowed to continue, shortages of
milk would have been the likely result''); see also Am. Fed'n of
Gov't Emp., AFL-CIO v. Block, 655 F.2d 1153, 1157 (D.C. Cir. 1981)
(approving good cause rescission of regulation requiring inspection
of poultry because they would ``ameliorate'' ``poultry shortages or
increases in consumer prices'').
\55\ See CPB, National Media Release: Trump Administration
delivers 4 straight months of 0 releases at the border, nationwide
crossings remain 93% lower than the peak under Biden Administration,
<a href="https://www.cbp.gov/newsroom/national-media-release/trump-administration-delivers-4-straight-months-0-releases-border">https://www.cbp.gov/newsroom/national-media-release/trump-administration-delivers-4-straight-months-0-releases-border</a> [INSERT
PERMA LINK] (last visited September 20, 2025).
---------------------------------------------------------------------------
Second, as explained in Section II.C below, the Department has good
cause under the ``impracticability'' prong to forgo the APA's notice-
and-comment procedures and delayed effective date requirements due to
USDA's decision to discontinue certain statistical surveys including
the FLS, that was submitted to OIRA on August 11, 2025, and
subsequently approved on August 12, 2025.\56\ This discontinuation went
into effect August 31, 2025, and created a regulatory gap for
establishing the AEWRs under the H-2A program that this IFR will
immediately fill. Under the 2010 H-2A Final Rule methodology that is
currently in effect due to the court's vacatur of the 2023 AEWR Final
Rule in Teche Vermilion, the Department relies on the annual results of
the FLS published by USDA in November to establish the annual AEWRs on
or before December 31 each year. USDA's August action to discontinue
the FLS means the data collection for the October quarter, which
captures employment and wage information for the July and October 2025
quarters, was canceled, as well as release of the annual report planned
for the November 2025 cycle. Although the methodology to establish the
AEWRs under this IFR is untethered from the continued use of annual FLS
wage data, the Department notes that any delay implementing this IFR,
in light of USDA's recent decision, will prevent the Department from
complying with the regulatory requirement to establish new annual
AEWRs.
---------------------------------------------------------------------------
\56\ The USDA later published notice of the discontinuation in
the Federal Register on September 3, 2025, at 90 FR 42560.
---------------------------------------------------------------------------
Accordingly, because notice and comment rulemaking would be
impracticable and against the public interest, the Department hereby
promulgates this IFR pursuant to 5 U.S.C. 553(b)(B). For the same
reasons, good cause exists for the IFR to take immediate effect, and
therefore, the Department sets the Effective Date to October 2, 2025
pursuant to 5 U.S.C. 553(d)(3).\57\
---------------------------------------------------------------------------
\57\ The Department further avers that the public is encouraged
to engage in post-promulgation notice and comment, and that it
intends to issue a ``final'' final rule wherein the Department will
take consideration of the comments.
---------------------------------------------------------------------------
B. First, The Good Cause Exception Is Independently Supported Due to
the Current Widespread and Novel Economic Hardship Faced by the
Regulated Community
1. Background Regarding the Labor Market for Agricultural Work
On January 20, 2025, President Trump issued Executive Order 14159,
Protecting the American People Against Invasion, 90 FR 8443 (Jan. 29,
2025), in
[[Page 47921]]
response to an ``unprecedented flood of illegal immigration into the
United States'' in recent years under the Biden Administration. The
Order directs federal agencies to ``employ all lawful means to ensure
the faithful execution of the immigration laws of the United States
against all inadmissible and removable aliens,'' including those who
committed illegal entry, have undocumented unlawful presence, or have
final orders of removal. Id. at Section 3(b). The Order also calls for
the efficient and expedited removal of aliens from the United States
who are recent entrants (i.e., arrived within the last two years),
enforcement of civil fines and penalties, and detention of all
``removable aliens'' until their removal proceedings are resolved or
their removal from the country.
As noted in Presidential Proclamation 10888, Guaranteeing the
States Protection Against Invasion, ``[o]ver the last 4 years, at least
8 million illegal aliens were encountered along the southern border of
the United States, and countless millions more evaded detection and
illegally entered the United States.'' 90 FR 83334 (Jan. 29, 2025). In
March 2025, the Department of Homeland Security (DHS) determined ``that
an actual or imminent mass influx of aliens is arriving at the southern
border of the United States and presents urgent circumstances requiring
a continued federal response.'' Finding of Mass Influx of Aliens, 90 FR
13622, 13622 (Mar. 25, 2025). Additionally, DHS has initiated voluntary
departure efforts, including the use of a new mobile application (``CBP
Home app''), consistent with Presidential Proclamation 10935,
Establishing Project Homecoming, 90 FR 20357 (May 14, 2025).\58\
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\58\ See CBP, CBP Home: Assistance to Voluntarily Self Deport,
<a href="https://www.dhs.gov/cbphome">https://www.dhs.gov/cbphome</a> [<a href="https://perma.cc/CK3X-QM79">https://perma.cc/CK3X-QM79</a>] (last
visited June 17, 2025). The CBP Home app allows aliens to register
to depart the United States voluntarily, provide required
biographical information, and notify DHS after they have departed.
DHS also offers financial and travel document assistance for some
aliens who request it, provides a $1,000 stipend upon confirmation
through the app that return has been completed, and rescinds civil
monetary fines imposed for failure-to-depart after return has been
completed. See also DHS, DHS Announces It Will Forgive Failure to
Depart Fines for Illegal Aliens who Self-Deport Through the CBP Home
App (June 9, 2025), <a href="https://www.dhs.gov/news/2025/06/09/dhs-announces-it-will-forgive-failure-depart-fines-illegal-aliens-who-self-deport">https://www.dhs.gov/news/2025/06/09/dhs-announces-it-will-forgive-failure-depart-fines-illegal-aliens-who-self-deport</a> [<a href="https://perma.cc/8RBN-PACA">https://perma.cc/8RBN-PACA</a>].
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The size and scope of these recent emergency actions to secure the
southern border of the United States and vigorously enforce the
nation's immigration laws to protect the American people is producing
measurable changes in migration and detention patterns. In its June
2025 monthly report, the United States Customs and Border Protection
(CBP) reported historically low numbers of border encounters and parole
releases, including zero illegal alien releases along the southwest
border for the second consecutive month.\59\ CBP also noted record lows
of 25,228 nationwide encounters, 8,024 nationwide apprehensions by U.S.
Border Patrol, and zero parole releases compared to 27,766 released in
June 2024. And finally, CBP made only 136 apprehensions on June 28: the
lowest single-day total in agency history. By August 12, 2025, CBP
continued to report that zero illegal aliens were released into the
country for the third consecutive month with illegal crossings in July
2025 dropping to the lowest level ever recorded.\60\ This trend has
continued, and illegal alien inflow stays at historic lows. On
September 19, 2025, CBP reported a fourth straight month of zero
releases at the border and illegal crossing rates remaining at 93%
lower than the peak reached during the prior four years.'' \61\
Further, the U.S. Border Patrol has reported an average of 204
apprehensions per day, a rate 96% lower than the daily average reached
during the prior four years.\62\ Finally, in addition to the near total
cessation of illegal inflow, illegal aliens are self-deporting at a
rate which has been increasing at a high rate each month. Because of
the very nature of voluntary departure, it is difficult to ascertain
the exact number of self-deportations, but the confirmed number of
voluntary departures went from just 592 in February 2025, to 4,241 in
July 2025.\63\ This represents an increase of approximately 7.17 times
over this period.
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\59\ U.S. Custom Border and Protection, Department of Homeland
Security, press release entitled ``Most secure border in history:
CBP reports major enforcement wins in June 2025,'' July 15, 2025,
available at <a href="https://www.cbp.gov/newsroom/national-media-release/most-secure-border-history-cbp-reports-major-enforcement-wins-june">https://www.cbp.gov/newsroom/national-media-release/most-secure-border-history-cbp-reports-major-enforcement-wins-june</a>
(last visited August 20, 2025).
\60\ U.S. Custom Border and Protection, Department of Homeland
Security, press release entitled ``Another record-setting month at
CBP: Border continues to be most secure in history,'' August 12,
2025, available at <a href="https://www.cbp.gov/newsroom/national-media-release/another-record-setting-month-cbp-border-continues-be-most-secure">https://www.cbp.gov/newsroom/national-media-release/another-record-setting-month-cbp-border-continues-be-most-secure</a> (last visited September 18, 2025).
\61\ See CPB, National Media Release: Trump Administration
delivers 4 straight months of 0 releases at the border, nationwide
crossings remain 93% lower than the peak under Biden Administration,
<a href="https://www.cbp.gov/newsroom/national-media-release/trump-administration-delivers-4-straight-months-0-releases-border">https://www.cbp.gov/newsroom/national-media-release/trump-administration-delivers-4-straight-months-0-releases-border</a> [INSERT
PERMA LINK] (last visited September 20, 2025).
\62\ Id.
\63\ New ICE Data Shows Steady Rise in Immigrants Self-
Deporting, Newsweek (Sept. 4, 2025, 3:08 p.m. EDT), updated (Sept.
5, 2025, 3:36 p.m. EDT) (last visited September 20, 2025), <a href="https://www.newsweek.com/ice-data-immigrants-self-deportation-trump-administration-2124106">https://www.newsweek.com/ice-data-immigrants-self-deportation-trump-administration-2124106</a>.
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The efficacy of current immigration enforcement activities that
prioritize a secure border is a direct result of the scope and speed of
the federal government's response to the unparalleled scale of the
illegal immigration crisis facing the United States.\64\ These
enforcement efforts will imminently intensify following the enactment
of H.R. 1, One Big Beautiful Bill Act, on July 4, 2025, under which
Congress is immediately expanding federal investment in border
security, detention capacity, and interior operations during fiscal
years 2025 and 2026.\65\ As these resources are deployed to further
strengthen the U.S. Southern Border and enforce immigration laws, and
as more illegal aliens choose voluntary departure in response, the
Department anticipates an imminent and significant decline in the
number of available illegal aliens who had, in significant part,
previously worked unlawfully in the U.S. agricultural sector.
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\64\ Relevantly, U.S. Immigration and Customs Enforcement (ICE),
which has responsibility for enforcing immigration laws within the
interior of the United States, reported a record high of 56,816 in
detention as of June 2025, and that number is expected to
significantly increase. U.S. Immigration and Customs Enforcement,
Department of Homeland Security, Detention Management Reports, FY
2025, available at https://www.ice.gov/detain/detention-
management#:~:text=Detention%20Statistics. Of that group, 16,173, or
28 percent of the detained population, had a criminal conviction. An
additional 13,891 people--24 percent--had pending criminal charges.
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Agricultural employers, who have been incentivized to utilize
illegal aliens for numerous reasons including the excessively high FLS-
based AEWR, will imminently face severe challenges accessing a
sufficient and legal supply of labor to sustain current food production
levels. According to the Department's National Agricultural Worker
Survey (NAWS),\66\ agricultural employers are disproportionately and
increasingly dependent on illegal aliens with approximately 42 percent
of crop workers surveyed reported lacking authorization to work in the
United States during FY 2021-2022; compared to 36 percent in FY 2017-
2018. These workers, both illegal aliens and authorized U.S. crop
workers, are also
[[Page 47922]]
settled and relatively immobile. Data from NAWS further shows that, in
2021-2022, only 3 percent of all U.S. crop workers reportedly migrated
by following the crops while 84 percent of these workers remain settled
and did not migrate for work at all. U.S. crop workers are also aging,
as approximately 36 percent of the crop workers interviewed were 44
years of age or older, compared to less than 15 percent in 2000, and
they spent an average of 8 years working for the same employer,
compared to 3 years in 2000.
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\66\ Findings from the National Agricultural Workers Survey
(NAWS) 2021-2022: A Demographic Employment Profile of United States
Crop Workers (Sept. 2023). U.S. DOL, Employment and Training
Administration. Available at: <a href="https://www.dol.gov/sites/dolgov/files/ETA/naws/pdfs/NAWSResearchReport17.pdf">https://www.dol.gov/sites/dolgov/files/ETA/naws/pdfs/NAWSResearchReport17.pdf</a>.
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In short, the agricultural sector is experiencing acute labor
shortages and instability because it has long depended on a workforce
with a high proportion of illegal aliens who previously cycled in and
out of the U.S. through a porous border; now, however, those who might
have cycled in cannot do so because of the now secure U.S. Southern
Border. Further, the remaining workforce tends to be relatively
immobile and unable to adjust quickly to shifting labor demands,
resulting in significant disruptions to farmers' ability to meet
seasonal labor needs.
Most concerning for the fragile agricultural workforce are the
dwindling numbers of current U.S. crop workers who are planning to
continue working in agriculture. According to the NAWS, just over one
in every five U.S. crop workers surveyed were planning to remain in
agriculture for up to 5 years, while approximately 53 percent reported
that they could find a non-farm job within one month. Separately, with
illegal border crossings at historic lows. Agricultural employers that
have historically relied on such illegal aliens, are experiencing
economic harm caused by mounting labor shortages. According to
available studies, a hypothetical decision to heighten immigration
enforcement actions could further reduce the supply of agricultural
labor with an estimated loss of, at a relatively modest estimate,
225,000 \67\ agricultural workers.\68\
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\67\ The true number is likely much higher when accounting for
illegal aliens who are not deported but choose not to work to avoid
exposure to potential enforcement actions. See e.g., Chloe East;
Annie L. Hines; Philip Luck; Hani Mansour and Andrea Velasquez,
(2023), The Labor Market Effects of Immigration Enforcement, Journal
of Labor Economics, 41, (4), 957--996.
\68\ Rice University's Baker Institute for Public Policy noted
in a March 26, 2025, article that ``over 8 million undocumented
immigrants currently work in the U.S., contributing to the economy
in key industries. Mass deportations could worsen labor shortages,
with estimates suggesting a reduction of 1.5 million in
construction, 225,000 in agriculture, 1 million in hospitality,
870,000 in manufacturing, and 461,000 in transportation and
warehousing. This would likely lead to higher costs, increased
inflation, and slower economic growth, with states like California,
Texas, and Florida facing the greatest impact.'' See Social and
Economic Effects of Expanded Deportation Measures, published by Tony
Payan and Jos[eacute] Iv[aacute]n Rodr[iacute]guez-S[aacute]nchez of
Rice University's Baker Institute for Public Policy at Social and
Economic Effects of Expanded Deportation Measures [verbar] Baker
Institute.
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In addition, the Department does not believe American workers
currently unemployed or marginally employed will make themselves
readily available in sufficient numbers to replace large numbers of
aliens no longer entering the country, voluntarily leaving, or choosing
to exit the labor force due to the self-perceived potential for their
removal based on their illegal entry and status. The supply of American
agricultural workers is limited by a range of structural factors
including the geographic distribution of agricultural operations, the
seasonal nature of certain crops, and overall unemployment rate.\69\
Furthermore, agricultural work requires a distinct set of skills and is
among the most physically demanding and hazardous occupations in the
U.S. labor market. These essential jobs involve manual labor, long
hours, and exposure to extreme weather conditions--particularly in the
cultivation of fruit, tree nuts, vegetables, and other specialty crops
for which production cannot be immediately mechanized. Based on the
Department's extensive experience administering the H-2A temporary
agricultural visa program, the available data strongly demonstrates--a
persistent and systemic lack of sufficient numbers of qualified,
eligible and interested American workers to perform the kinds of work
that agricultural employers demand. In the most recent five years, for
example, employer demand for H-2A workers has increased by 36 percent
from 286,900 workers requested in FY 2020 to nearly 391,600 workers
requested in FY 2024, and the Department has consistently certified at
least 97 percent of employer demand for agricultural workers based on a
lack of qualified, eligible, and interested U.S. workers. For FY 2025
and as of July 1, 2025, employers seeking H-2A workers have requested
more than 320,700 worker positions and the Department has certified 99
percent of the demand based on a lack of qualified and eligible U.S.
workers. Despite efforts to broadly advertise agricultural jobs, as
required by the Department's regulations at 20 CFR 655.144, 150, 153,
and 154, the most recent data confirm that domestic applicants are not
applying for agricultural positions in sufficient numbers to meet the
temporary or seasonal workforce needs of employers. Thus, based on the
available evidence, the Department concludes that qualified and
eligible U.S. workers, whether unemployed, marginally employed, or
employed seeking work in agriculture, will not make themselves
immediately available in sufficient numbers to avert the irreparable
economic harm to agricultural employers who no longer have access to a
ready pool of illegal aliens to fulfill their labor needs.
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\69\ See Kelly Lester, Harvest on Hold, John Locke Society,
April 28, 2025, at pp. 5; 23-28 (<a href="https://www.johnlocke.org/wp-content/uploads/2025/05/Agriculture-Crisis-Web.pdf">https://www.johnlocke.org/wp-content/uploads/2025/05/Agriculture-Crisis-Web.pdf</a>); see also,.
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2. Economic Forecasting Regarding Food Prices and Availability
With the historic near total cessation of illegal border
crossings--the Department must take immediate action to provide
agricultural employers with a viable workforce alternative while
concurrently averting imminent economic harm. Labor shortages can have
an immediate effect on farm operations. For example, one study found
that a mere 10 percent decrease in the agricultural workforce can lead
to as much as a 4.2 percent drop in fruit and vegetable production and
a 5.5 percent decline in farm revenue.\70\ Given that approximately 42
percent of the U.S. crop workforce are unable to enter the country,
potentially subject to removal or voluntarily leaving the labor force,
these impacts will likely be dramatically higher. The study further
estimated that a 21 percent shortfall in the agricultural workforce
would result in an overall $5 billion loss just in terms of domestic
fresh produce alone for U.S. consumers. Such significant economic
impacts not only create tangible and imminent economic harms, but they
structurally disrupt the ordinary operations of the U.S. agricultural
sector, resulting in shortages of agricultural commodities that cannot
be supplemented with imports in the near-term.
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\70\ Zachariah Rutledge and Pierre M[eacute]rel, ``Farm Labor
Supply and Fruit and Vegetable Production,'' American Journal of
Agricultural Economics 105, no. 2 (August 15, 2022): 644-73, <a href="https://doi.org/10.1111/ajae.12332">https://doi.org/10.1111/ajae.12332</a>.
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Given the scale, speed, and investment in the federal government's
efforts to enforce immigration laws and restore the integrity of the
U.S. border, the Department concludes that there will be significant
labor market effects in the agricultural sector, which has long been
pushed to depend on a workforce with a high proportion of illegal
aliens. Because these illegal aliens often possess specialized skills
suited to agricultural tasks and typically earn lower wages than
authorized workers, their sudden and large-scale
[[Page 47923]]
departure is expected to significantly increase labor costs for
employers. These cost increases are very likely to limit the ability of
agricultural operations to maintain current production levels or expand
employment, resulting in downstream impacts on food supply and pricing.
Labor expenses are already a major component of U.S. agricultural
production costs, especially in the specialty crop sectors where
relatively large numbers of illegal aliens are employed. According to
USDA's Economic Research Service (ERS), labor expenses (including
noncash employee compensation) are forecasted to reach a record high in
2025, rising $2.9 billion (5.9 percent) in 2024 to $51.7 billion and
then increasing an additional $1.8 billion (3.6 percent) to $53.5
billion this year, driven by wage increases and ongoing labor
shortages.\71\
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\71\ Farm Sector Income & Finances: Farm Sector Income Forecast
(Feb. 2025). U.S. Department of Agriculture, Economic Research
Service.
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Although hired domestic farmworkers only comprise less than 1
percent of all U.S. wage and salary workers, these workers are
essential to U.S. agriculture. Without immediate action from the
Department to assist employers in securing a reliable workforce
alternative, labor shortages will likely intensify, driving up
production costs, limiting output in key sectors such as fruits and
vegetables, and increasing reliance on imported food products. USDA
Economic Research Service (ERS) estimates that hired farm labor costs
account for nearly 15 percent of total cash expenses across the sector,
with labor-intensive sub-sectors, such as nurseries, greenhouses, and
other specialty crop growers, devoting over 40 percent of their total
cash expenses on labor.\72\
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\72\ Subedi, Dipak & Giri, Anil K. (Oct. 2024). Specialty Crop
Farms Have Highest Labor Cost as Portion of Total Cash Expenses.
U.S. Department of Agriculture, Economic Research Service. Available
at: <a href="https://www.ers.usda.gov/data-products/charts-of-note/chart-detail?chartId=110172">https://www.ers.usda.gov/data-products/charts-of-note/chart-detail?chartId=110172</a>. USDA ERS noted that farm wages have
significantly increased both in absolute terms and relative to other
occupations. For example, back in 1990, the average farm wage for
nonsupervisory crop and livestock workers in real values was just
over half the average real wage in the nonfarm sector for private
nonsupervisory occupations. By 2022 the ratio had increased to 60
percent, as the gap between farm and nonfarm wages narrowed. ``Farm
Labor,'' Economic Research Service, United States Department of
Agriculture (USDA), last updated August 7, 2023, <a href="https://www.ers.usda.gov/topics/farm-economy/farm-labor/">https://www.ers.usda.gov/topics/farm-economy/farm-labor/</a>.
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These sub-sectors of U.S. agriculture, which are heavily dependent
on illegal aliens, are especially vulnerable to labor market imbalances
and cost volatility. At the same time, American agriculture is under
intense global pressure. In April 2025, for example, ERS reported that
the number of farms in the United States continued its decline to 1.88
million in 2024, the lowest in more than a century, down from 2.04
million in 2017.\73\ And finally, after decades of consistent trade
surpluses, U.S. agriculture is expected to face the largest trade
deficit on record at $49.5 billion, driven in part by increased imports
of labor-intensive commodities from countries with significantly lower
production costs.\74\
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\73\ USDA, Economic Research Service using data from USDA,
National Agricultural Statistics Service, Census of Agriculture
(through 2022) and Farms and Land in Farms: 2024 Summary (February
2025).
\74\ Hill, Alexandra E. & Sayre, James E. As Mexican Farmworkers
Flock North, Will U.S. Farms Head South? (Oct. 2024). Outlook for
U.S. Agricultural Trade: May 2025. ARE Update 28(1): 9-12. Giannini
Foundation of Agricultural Economics, University of California.
(``In 2022, the average non-H-2A U.S. farm worker earned $15 an
hour; H-2A workers in California (the state with the highest AEWR
that year) were required to be paid at minimum $17.51; and H-2A
workers in Alabama, Georgia, and South Carolina (the states with the
lowest AEWR in 2022) were required to be paid at minimum $11.99. By
comparison, the average hired farmworker in Mexico earned the
equivalent of $1.59 an hour in 2022. In the highest wage-paying
state in Mexico, Colima, the average worker earned $2.53 an hour, a
quarter of the minimum AEWR in that year.''). Available at: <a href="https://s.giannini.ucop.edu/uploads/pub/2024/10/29/v28n1_3.pdf">https://s.giannini.ucop.edu/uploads/pub/2024/10/29/v28n1_3.pdf</a>.
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3. The Flaws in the AEWR Wage Policy That Restrict Labor Supply and
Need for a New AEWR Methodology
As the U.S. agricultural workforce faces growing instability,
employers' reliance on the H-2A visa program has expanded rapidly. Over
the past decade, demand for nonimmigrant workers under the H-2A
classification has quadrupled, and the program has become a critical
legal workforce solution for employers, particularly in labor-intensive
sectors such as specialty crops. However, the high costs to participate
in the H-2A program--including the mandatory AEWRs on top of other non-
wage costs such as housing, transportation, and fees--have become
increasingly burdensome. These requirements go far beyond the
compensation costs an employer would bear if they could hire enough
qualified and eligible local U.S. workers, placing further financial
strain on farming operations of all sizes in an industry already facing
a record trade deficit \75\ and overall grim financial outlook.
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\75\ Kaufman, J., Jiang, H., & Williams, A. (2025). Outlook for
U.S. agricultural trade: May 2025 (Report No. AES-132). U.S.
Department of Agriculture, Economic Research Service and U.S.
Department of Agriculture, Foreign Agricultural Service. This
forecast projects the largest agricultural trade deficit in U.S.
history, with the first four months of the year resulting in a $19.7
billion deficit that is expected to continue to grow.
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Over the last 20 years, the national average FLS-based AEWR has
more than doubled from $8.56 in 2005 to $17.74 in 2025. Between 2005
and 2018, the average annual increase in the AEWR was already 2.8
percent, but the pace of annual wage growth since that time has
increased significantly. Since 2019, the average annual increase in the
AEWR was 5.5 percent, nearly double the rate of change in the earlier
period and far outpacing the 4.4 percent average annual hourly wage
growth of all other non-farm private sector workers.\76\ For 2025, the
AEWRs across the country ranged from a low of $14.83 in the Delta
Region covering the states of Arkansas, Louisiana, and Mississippi to a
high of $19.97 in California. Notably, these rates exceed the local
applicable minimum wage for domestic workers. These AEWR rates must be
paid to workers in addition to the cost of other mandatory
remuneration, benefits, and working conditions (e.g., housing,
transportation) that workers receive under the H-2A program. AEWRs have
risen substantially across all regions of the United States with the
southeastern states experiencing a nearly 10 percent increase over
2024. More than 35 percent of states experienced an AEWR wage increase
between 50 cents and 99 cents per hour while an additional 37 percent
of states experienced an increase between $1 and $1.50 per hour. Nearly
two-thirds of all states have an AEWR between $17 and $20 in 2025,
which is well above federal and state minimum wage levels. Put another
way, the national average AEWR increased by a total of $4.40 per hour
in the 15-year period from 2005 to 2019. However, the national average
AEWR has increased by more than $3.75 per hour within just the last 5
to 6 years.
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\76\ Average Hourly Earnings of All Employees, Total Private
(Jun. 2025). Federal Reserve Bank of St. Louis. Available at:
<a href="https://fred.stlouisfed.org/series/CEU0500000003">https://fred.stlouisfed.org/series/CEU0500000003</a>.
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In its most recent May 2025 data release, USDA estimates that the
national average hourly wage for field and livestock workers combined
was $18.46 per hour based on data collected for the January 12-18
reference week, and $18.43 per hour based on data collected for the
April 6-12 reference week, yielding a weighted average of $18.44 per
hour, a further 4 percent increase over the current national average
AEWR of $18.12 per hour.\77\ In a sector where profits margins are
already thin, such increases place agricultural employers at a
competitive
[[Page 47924]]
disadvantage, particularly when compared to growers in Mexico paying
approximately $1 to $2 per hour.\78\
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\77\ See May 2025 Farm Labor Report, National Agricultural
Statistics Service (NASS), Agricultural Statistics Board, United
States Department of Agriculture, (May 21, 2025).
\78\ For example, in 2023 and 2024, the U.S. farm sector
reported overall declining profitability; the vast majority of farms
earned $1,000,000 or less in gross sales. Stephanie Rosch, Christine
Whitt, 2023 and 2024 Farm Sector Profitability: Issues for Congress
(Dec. 21, 2024), available at <a href="https://www.congress.gov/crs-product/R48278">https://www.congress.gov/crs-product/R48278</a>?. U.S. farms that earned $100,000 or less reported less than
$2,000 in average net cash farm income in 2023 and 2024, and
reported negative average net cash farm income in 2019-2021. Id.
With respect to production expenses, labor costs (including noncash
employee compensation) are forecast to be a record high in 2025,
rising $2.9 billion (5.9 percent) in 2024 to $51.7 billion. They are
forecast to rise by an additional $1.8 billion (3.6 percent) to
$53.5 billion in 2025. See U.S. Department of Agriculture, Economic
Research Service. (2025, February 6). Farm sector income & finances:
Farm sector income forecast.
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Additional upward pressure on labor costs--whether due to continued
AEWR escalation or other regulatory requirements \79\--threatens the
viability of farming operations, especially as substantial numbers of
illegal aliens are removed or voluntarily depart from the U.S. labor
force.\80\ Based on the Department's program experience, the
combination of rapid increases in the AEWRs, additional non-wage costs
to employ H-2A workers, and other increases in regulatory compliance
costs has materially slowed the overall growth of employer labor demand
in the last two years with respect to the total number of H-2A workers
being requested for labor certification. For instance, for several
years prior to 2023, the average annual rate of growth in employer
demand for H-2A worker positions was almost 15 percent. However, the
growth in employer demand for H-2A workers has dramatically slowed to
1.98 percent in 2023 (398,908), compared to 2022 (382,354), and a mere
0.42 percent in 2024 (391,590).\81\
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\79\ According to a recent study conducted as a cooperative
research grant through the USDA's Office of the Chief Economist,
researchers analyzed relevant non-wage costs on employers
participating in the H-2A program, including fees, transportation,
housing, and other recruitment expenses, finding that the minimum
cost of nonwage expenses for H-2A workers is approximately $10,000
per worker. For employers requesting 100 workers, the estimated DOL
and DHS fees would cost $15.60 per worker ($11 per worker in labor
certification and $4.60 per worker in nonimmigrant worker petition),
while applying for 10 workers would cost four times more. In
addition, informal surveys of large H-2A employers suggest a typical
recruitment fee of $100-$250 per worker and $1,500-$3,500 per
application in U.S. agent costs. USDA estimates the cost of
transporting H-2A workers to the United States from their home
countries from $400 to $650 per worker with housing costs range
between $9,000 and $13,000 per worker, making it the biggest nonwage
expense for H-2A employers. See Marcelo Castillo, Philip Martin, and
Zachariah Rutledge, Whither the H-2A Visa Program: Expansion and
Concentration, published in Choices Magazine, Volume 39, Quarter 1
(June 2024) and available at <a href="https://www.choicesmagazine.org/choices-magazine/submitted-articles/whither-the-h-2a-visa-program-expansion-and-concentration">https://www.choicesmagazine.org/choices-magazine/submitted-articles/whither-the-h-2a-visa-program-expansion-and-concentration</a> (last visited September 14, 2025).
\80\ The Department is also aware of the extensive discussions
in Congress on the AEWR and various bipartisan bills introduced to
immediately alter the methodology for determining the AEWRs in the
H-2A program. For example, on January 18, 2024, the Supporting Farm
Operations Act of 2024 was introduced to freeze the AEWRs in effect
on December 31, 2023, through the end of 2025. See Support Farm
Operations Act. S. 3848, H.R. 7046, 118th Cong. (2024). Available
at: <a href="https://www.congress.gov/bill/118th-congress/senate-bill/874/text">https://www.congress.gov/bill/118th-congress/senate-bill/874/text</a>; In January 2024, 75 members signed a letter to leadership on
the House and Senate Committees on Appropriations requesting that an
H-2A wage freeze be included in the Fiscal Year (FY) 2024
appropriations bill. See Rep. Bill Huizenga, et al. Letter to
Members of the Committee on Appropriations (Jan. 11, 2024).
Available at: <a href="https://huizenga.house.gov/uploadedfiles/jan._11_ltr_to_appropriators_re_h2a_wage_2024.pdf">https://huizenga.house.gov/uploadedfiles/jan._11_ltr_to_appropriators_re_h2a_wage_2024.pdf</a>. On May 22, 2025,
more than 100 members of Congress once again wrote a similar letter
to leaders on the House Subcommittee on Labor, HHS and Education
urging an H-2A wage freeze be included in the FY 2026 appropriations
legislation. Specifically, the House members noted that the
``skyrocketing AEWR will only compound inflated input costs like
energy and fertilizer, other guest worker expenses like
transportation and housing, and burdens from several impending
federal regulations and fees . . . If we do nothing, many of our
constituents will be forced to shutter their businesses, despite
good-faith efforts to ensure our national food security and feed
families across our nation.'' See Rep. Bill Huizenga, et al. Letter
to Chair and Ranking Member of the Subcommittee on Labor, HHS, and
Education (Jan. 11, 2024). available at: <a href="https://huizenga.house.gov/uploadedfiles/final_h2a_wage_freeze_fy26.pdf">https://huizenga.house.gov/uploadedfiles/final_h2a_wage_freeze_fy26.pdf</a>.
\81\ Concerns regarding the negative effects of rapidly rising
AEWRs in recent years were also noted by a bipartisan Agricultural
Labor Working Group (ALWG), which was formed in 2023 by the House
Committee on Agriculture. In its final report released on March 7,
2024, the ALWG noted that the ``strictures of current law are
driving up costs in the H-2A program and acting as barriers to entry
for the program.'' With unanimous support, the ALWG recommended a
one-year freeze on the AEWRs and caps to increases and decreases to
provide more stability and predictability related to an employer's
wage obligations. See H. Rpt. Final Report with Policy
Recommendations. House Committee on Agriculture, Agricultural Labor
Working Group at 10. Available at: <a href="https://agriculture.house.gov/uploadedfiles/alwg_final_report_-_3.7.23.pdf">https://agriculture.house.gov/uploadedfiles/alwg_final_report_-_3.7.23.pdf</a>.
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Importantly, these rising AEWR levels have not resulted in a
meaningful increase in new entrants of U.S. workers to temporary or
seasonal agricultural jobs. Agricultural work remains physically
demanding, often takes place in remote locations, carries health and
safety risks, and typically lacks advancement opportunities--factors
that continue to discourage participation by the domestic workforce.
Despite rising wages, such jobs are still not viewed as viable
alternatives for many workers. At the same time, U.S. demand for fresh
fruits and vegetables continues to grow, and the vast majority of this
labor remains non-automated. Decline in the illegal alien population
will only exacerbate this already pressing mismatch in the agricultural
labor market and deprive growers of a relatively cheaper labor supply
on which they have become economically reliant. (A substantial body of
research estimates that illegal alien workers earn between four percent
and 24 percent less than similarly situated legal workers, giving
employers a strong financial incentive to hire illegal labor.) \82\
Despite rising wages, there is no indication that unemployed or
marginally attached U.S. workers are entering the agricultural labor
force in meaningful numbers. Without swift action, agricultural
employers will be unable to maintain operations, and the nation's food
supply will be at risk.
---------------------------------------------------------------------------
\82\ See Borjas, George J., and Hugh Cassidy, The wage penalty
to undocumented immigration. Labour Economics 61 (2019): 101757;
Donato, Katharine M., and Douglas S. Massey. ``Effect of the
Immigration Reform and Control Act on the wages of Mexican migrants.
'' Social Science Quarterly (1993): 523-541; Kossoudji, Sherrie A.,
and Deborah A. Cobb-Clark. ``Coming out of the shadows: Learning
about legal status and wages from the legalized population.''
Journal of Labor Economics 20, no. 3 (2002): 598-628; Rivera-Batiz,
Francisco L. ``Undocumented workers in the labor market: An analysis
of the earnings of legal and illegal Mexican immigrants in the
United States.'' Journal of Population Economics 12, no. 1 (1999):
91-116.)
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Under such conditions, the current methodology for determining the
AEWRs is an unworkable barrier to securing a legal agricultural
workforce. The H-2A program should be a viable legal pathway--not a
regulatory dead end. The Department has long recognized that ``clear
congressional intent was to make the H-2A program usable, not to make
U.S. producers non-competitive'' and that ``[u]nreasonably high AEWRs
could endanger the total U.S. domestic agribusiness, because the
international competitive position of U.S. agriculture is quite
fragile.'' \83\ The unreasonably high FLS-based AEWRs were only
workable because agricultural employers could turn to low-priced
illegal aliens, but that is no longer the case. U.S. agricultural
employers need a legal and stable workforce to support their farming
operations, and persistent labor shortages and increases in production
costs will only harm U.S. competitiveness, threaten food production,
drive up consumer prices, and create instability in rural communities.
---------------------------------------------------------------------------
\83\ 54 FR at 28046.
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Thus, the Department concludes, based on all available evidence and
studies, that immediate reform to the H-2A program's minimum wage
policy, or the AEWRs, is necessary to avoid imminent widespread
disruption across the U.S. agricultural sector. Without prompt action,
agricultural employers
[[Page 47925]]
will face severe labor shortages, resulting in disruption to food
production, higher prices, and reduced access for U.S. consumers,
particularly to fresh fruit and vegetables. Further, the Department
concludes that qualified and eligible U.S. workers will not make
themselves available in sufficient numbers, even at current wage
levels, to fill the significant labor shortage in the agricultural
sector. As discussed in detail below, the reforms contained in this IFR
of the H-2A program's wage policy are urgently needed to restore the
usability of the H-2A program and to provide a practical, lawful
workforce alternative to illegal aliens. These changes ensure that
agricultural employers offer fair wages to legally authorized workers--
consistent with wages paid in comparable farm and non-farm jobs--while
maintaining compliance with immigration law and supporting the
stability of the nation's food supply.
As the regulatory impact analysis indicates, the Department
anticipates negative impacts for certain populations associated with
this regulation. In particular, certain current H-2A workers may
experience reductions in wages as a result of lower prevailing wage
rates. However, the Department expects that this effect will be
mitigated by an increase in the number of certified H-2A job
opportunities, which will create additional employment for new H-2A
workers who may otherwise lack access to lawful agricultural employment
in the United States. The Department also acknowledges that illegal
aliens currently employed in agriculture may be adversely affected as
growers shift toward reliance on the lawful H-2A program rather than
illegal aliens.
C. Second, the Good Cause Exception is Separately and Independently
Supported by the Discontinuation of the FLS by the Department of
Agriculture and the Court Ordered Vacatur of the 2023 AEWR Final Rule
As discussed above, in Section I.D., on August 21, 2025, plaintiffs
in Teche Vermilion filed a Motion for Entry of Final Judgment
requesting that the court convert its preliminary injunction into a
final judgment and to accordingly vacate the 2023 AEWR Final Rule.\84\
On August 25, 2025, the Western District of Louisiana granted
plaintiffs' unopposed Motion for Entry of Final Judgment and ordered
the 2023 AEWR Final Rule vacated.\85\ As a result of the vacatur, the
methodology for determining the AEWRs reverted back to the 2010 H-2A
Final Rule which sets the AEWRs based solely on the annual weighted
average hourly wage for field and livestock workers (combined) as
reported by the FLS and published in November each year by USDA.\86\
---------------------------------------------------------------------------
\84\ Motion For Entry of Final Judgment, Teche Vermilion Sugar
Cane Growers Ass'n Inc. v. Su, No. 6:23-cv-00831-RRS-CBW (W.D. La.
Aug. 21, 2025), ECF No. 86.
\85\ Judgment, Teche Vermilion Sugar Cane Growers Ass'n Inc. v.
Su, No. 6:23-cv-00831-RRS-CBW (W.D. La. Aug. 21, 2025), ECF No. 87.
\86\ 20 CFR 655.103 (2010); 20 CFR 655.120(c) (2010).
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However, on August 11, 2025, USDA made the determination, based on
its own statutory authority, to discontinue surveys and further
administration of the FLS program and the request was subsequently
approved by OIRA on August 12, 2025, with an immediate effective date
of August 31, 2025.\87\ As a result of this determination, USDA
canceled the October quarter's data collection for the FLS that
collects employment and wage information for the July and October 2025
quarters from farm establishments. Without the October data collection,
USDA cannot produce a November 2025 report containing the annual gross
hourly wage rates for field and livestock workers (combined) for each
state or region based on quarterly wage data collected from employers
during calendar year 2025. Under the 2010 H-2A Final Rule methodology
for establishing the AEWRs, the November 2025 FLS report would be used
to establish and publish the hourly AEWRs for the next calendar year
period on or before December 31, 2025, as required by the Department's
regulations.\88\
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\87\ <a href="https://www.reginfo.gov/public/do/PRAOMBHistory?ombControlNumber=0535-0109#">https://www.reginfo.gov/public/do/PRAOMBHistory?ombControlNumber=0535-0109#</a>; 90 FR 42560 (Sep. 3,
2025).
\88\ 20 CFR 655.120(c) (2010).
---------------------------------------------------------------------------
Because the methodology for establishing the AEWRs under the 2010
H-2A Final Rule does not provide for the use of a data source other
than USDA FLS, USDA's recent determination to discontinue
administration of the FLS program created an imminent regulatory gap,
leaving the Department without the means to establish updated AEWRs for
the 2026 calendar year period. Given the requirement to publish updated
AEWRs on or before December 31, 2025, immediate action is necessary.
In the absence of the FLS, the methodology for establishing the
AEWRs under the 2010 H-2A Final Rule provides the Department with no
other mechanism for establishing the annual AEWRs that it is required
to publish pursuant to 29 CFR 655.120(c). Section 20 CFR 655.103
requires the Department to base the AEWR on the FLS survey ``as
published annually'' based on USDA's ``quarterly wage survey.''
However, as explained above, these data will not be published due to
USDA's discontinuation of its FLS. There are no other provisions
establishing what an ``AEWR'' is for purposes of 20 CFR 655.120(c).
The Department seeks to fill this imminent regulatory gap and
promote long-term stability in administering the H-2A program by
immediately adopting revisions to the AEWR methodology that rely on the
BLS OEWS as the sole source of employment and wage information for
establishing more precise skill-based AEWRs for all job opportunities
specific to each state, which the FLS is not capable of reporting.
Employers using the H-2A program depend on the existence of regularly
published AEWRs to understand their minimum wage obligations to
workers, and the Department has a statutory mandate to protect the
wages of similarly employed U.S. workers from adverse effect. The
Department's inability to establish the AEWRs for calendar year 2026
would lead to a regulatory collapse of minimum wage requirements in the
H-2A program as employers would face significant economic uncertainty
with respect to what minimum wage requirements would apply and be
enforced by the Department under their work contracts with
farmworkers.\89\
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\89\ Moreover, in the absence of a FLS-based AEWR, the
requirements set forth under the 2010 H-2A Final Rule at 20 CFR
655.120 provides that a regulated employer would have to offer the
highest of ``the AEWR [which no longer exists], the prevailing
hourly wage or piece rate, the agreed-upon collective bargaining
wage, or the Federal or State minimum wage, except where a special
procedure is approved for an occupation or specific class of
agricultural employment.'' While failure to publish an AEWR is
problematic, in its own right, as a failure of the Department to
satisfy a regulatory mandate, it would also lead to Federal or State
minimum wages being the next highest rate in many instances.
---------------------------------------------------------------------------
In short, the status quo following the Teche Vermilion order to
vacate the 2023 AEWR Final Rule and discontinuation of the FLS by USDA
in August 2025 will lead to a disruptive and uncertain regulatory
environment. This outcome would occur either if the Department did
nothing, or if the Department opted to publish this rule via notice and
comment instead of as an IFR. Therefore, good cause exists for the
Department to provide a new methodology for determining the AEWRs so
the Department can publish new AEWRs in time for employers to use by
the start of 2026.
Recognizing the need to publish a notice in the Federal Register
before the
[[Page 47926]]
end of calendar year 2025, the Department has considered but rejected
relying on the 2024 AEWRs and later switching to the IFR's proposed
methodology. Crucially, because the FLS has been discontinued by USDA,
there is no USDA data collection that could occur in time for the
mandatory January 1, 2026 publication of the AEWRs. Because the
Department will have to change to the OEWS in any event, it is clear
that the benefits of making the switch immediately outweigh the minor
costs. As explained in detail below, the Department has determined that
the OEWS is a superior data source to the FLS for establishing more
precise skill-based AEWRs covering all job opportunities specific to
each state and will possess an even higher degree of superiority once
the anticipated expansion of the OEWS to collect information from farm
establishments begins during calendar year 2026. The Department sees no
benefit in continuing to rely, even temporarily, on AEWRs established
under the 2010 Final Rule using a methodology and data sources that
cannot produce more precise estimates of the average wages paid to U.S.
workers similarly employed based on the skills and qualifications
required by employers who are seeking to employ H-2A nonimmigrant
workers, and then instituting a new methodology shortly thereafter
during the peak filing months of November through March and after many
employers have business contracts in place.\90\
---------------------------------------------------------------------------
\90\ Courts have frequently recognized that this kind of a
``regulatory vacuum'' militates in favor of finding good cause. See
e.g., Am. Fed'n of Gov't Emp., AFL-CIO v. Block, 655 F.2d 1153, 1157
(D.C. Cir. 1981) (``Although the trial judge indicated that he was
only voiding the status quo order and was not mandating the action
to be taken by the Department to comply with his injunction, the
absence of specific and immediate guidance from the Department in
the form of new standards would have forced reliance by the
Department upon antiquated guidelines, thereby creating confusion
among field administrators, and caused economic harm and disruption
to those northeastern processors whose inspection lines ran at
varying speeds.''); Coal. for Parity, Inc. v. Sebelius, 709 F. Supp.
2d 10, 20 (D.D.C. 2010) (``courts within this Circuit have
considered the need for regulatory guidance as one factor in
assessing whether an agency has ``good cause'' to forego notice and
comment.'') Indeed, as in AFL-CIO v. Block, the mere existence of an
undesirable ``backstop'' does not weigh against a finding of good
cause.
---------------------------------------------------------------------------
Accordingly, in addition to, and as a separate and independent
basis for good cause, (1) the Teche judgment that vacated the 2023 AEWR
Final Rule and replaced it with the 2010 AEWR Final Rule, and (2) the
discontinuance of the FLS creates a need for immediate action to ensure
compliance with the regulatory requirement to establish updated AEWRs
for 2026. The Department must take effective action by January 1, 2026,
otherwise, the H-2A application environment will be subject to
disruption and uncertainty. The Department explains in great detail why
the methodology that this IFR implements is the best possible
methodology. There is simply no good reason why the Department should
opt for a different methodology on a temporary basis before switching
to the new one. Indeed, such oscillations on a short-term basis would
be disruptive.
III. Implementation of This IFR
This IFR amends the AEWR methodology announced in the 2010 H-2A
Final Rule and amends the regulatory text in 20 CFR 655.120(b) which
had not been amended after the vacatur of the 2023 AEWR Final Rule. Any
job orders for non-range job opportunities submitted to the OFLC
National Processing Center (NPC) in connection with an Application for
Temporary Employment Certification for H-2A workers before the
effective date of this final rule will be processed using the 2010 H-2A
Final Rule methodology, under which the AEWR for all non-range H-2A job
opportunities is equal to the annual average hourly gross wage rate for
field and livestock workers (combined) in the State or region as
reported by FLS. That means employers must pay the wage rate listed in
a currently certified job order to all H-2A workers and all workers in
corresponding employment for the duration of the work contract period
provided it is still higher than the applicable AEWR published under
this IFR. See 20 CFR 655.120(b)(5)-(6). The methodology established by
this IFR, as described in revisions adopted by the Department under 20
CFR 655.120(b)(1)(iii), applies to any job orders for non-range job
opportunities submitted to the NPC in connection with an Application
for Temporary Employment Certification, as set forth in 20 CFR 655.121,
on and after the effective date of this IFR, including job orders filed
concurrently with an Application for Temporary Employment Certification
to the NPC for emergency situations under 20 CFR 655.134.
In order for employers to understand their wage obligations upon
the effective date of this IFR, the Department is listing below the
statewide AEWRs for Skill Level I (Entry-Level) and Skill Level II
(Experience-Level) qualifications applicable to the field and livestock
workers (combined) category for each state pursuant to 20 CFR
655.120(b)(1)(i). In addition, the Department is listing in the last
column the statewide downward compensation adjustments to the
applicable AEWRs that can only be applied to H-2A workers who are
provided with housing at no cost pursuant to 20 CFR 655.120(b)(3) of
this IFR. For example, if employers are seeking to employ H-2A workers
in Alabama for jobs in any of the five SOC codes encompassed by the
``field and livestock workers (combined)'' category, their job orders
would specify in the job order (i.e., Field A.8b of the Form ETA-790A)
a wage offer to U.S. workers no less than $11.25 per hour where the
duties and qualifications are commensurate with a Skill Level I
position. For any H-2A worker(s) employed under the associated
temporary agricultural labor certifications, employers would specify in
Field A.8e or Addendum A of the job order wage offers to H-2A workers
no less than $10.05 per hour ($11.25 per hour for Skill Level I minus
$1.20 per hour adjustment).
Additionally, the Department has posted contemporaneously with the
publication of this IFR, a Microsoft Excel file on the OFLC Foreign
Labor Application Gateway (FLAG) System at <a href="https://flag.dol.gov/wage-data/adverse-effect-wage-rates">https://flag.dol.gov/wage-data/adverse-effect-wage-rates</a> enabling interested parties to locate,
by State and SOC code, the AEWR applicable for Skill Level I (Entry-
Level) and Skill Level II (Experience-Level) qualifications covering
all other non-range job opportunities pursuant to 20 CFR
655.120(b)(1)(ii) of this IFR.
TABLE--STATEWIDE HOURLY AEWRS DETERMINED UNDER Sec. 655.120 (b)(1)(I) AND COMPENSATION ADJUSTMENT FOR H-2A
WORKERS ONLY
----------------------------------------------------------------------------------------------------------------
Skill level II H-2A adverse
State Skill level I (experience- compensation
(entry-level) level) adjustment
----------------------------------------------------------------------------------------------------------------
Alabama......................................................... $11.25 $14.95 -$1.20
[[Page 47927]]
Alaska.......................................................... 14.79 20.01 -1.90
Arizona......................................................... 15.32 18.01 -2.10
Arkansas........................................................ 13.40 16.18 -1.13
California...................................................... 16.45 18.71 -3.00
Colorado........................................................ 16.28 20.02 -2.18
Connecticut..................................................... 15.93 18.20 -2.06
Delaware........................................................ 14.61 19.63 -1.85
District of Columbia............................................ 17.47 23.80 -2.64
Florida......................................................... 12.47 15.06 -2.29
Georgia......................................................... 12.27 16.22 -1.75
Guam............................................................ 9.70 10.89 -2.35
Hawaii.......................................................... 14.36 18.49 -3.18
Idaho........................................................... 12.92 17.07 -1.84
Illinois........................................................ 15.48 18.75 -1.79
Indiana......................................................... 14.93 19.22 -1.27
Iowa............................................................ 14.20 18.87 -1.15
Kansas.......................................................... 12.69 18.14 -1.26
Kentucky........................................................ 13.94 17.99 -1.24
Louisiana....................................................... 9.59 14.84 -1.35
Maine........................................................... 14.81 18.95 -1.60
Maryland........................................................ 15.35 18.21 -2.31
Massachusetts................................................... 15.29 17.57 -2.42
Michigan........................................................ 13.78 17.47 -1.32
Minnesota....................................................... 14.60 19.33 -1.68
Mississippi..................................................... 9.74 14.92 -1.15
Missouri........................................................ 14.56 18.74 -1.28
Montana......................................................... 13.03 18.48 -1.80
Nebraska........................................................ 14.20 19.26 -1.24
Nevada.......................................................... 14.54 18.40 -2.15
New Hampshire................................................... 13.99 16.14 -1.96
New Jersey...................................................... 16.05 19.41 -2.28
New Mexico...................................................... 12.51 16.20 -1.44
New York........................................................ 15.68 18.75 -2.40
North Carolina.................................................. 12.78 16.39 -1.69
North Dakota.................................................... 12.31 18.98 -1.27
Ohio............................................................ 14.38 18.11 -1.23
Oklahoma........................................................ 11.27 16.01 -1.22
Oregon.......................................................... 15.25 17.62 -2.11
Pennsylvania.................................................... 13.88 17.99 -1.52
Puerto Rico..................................................... 9.50 10.37 -0.71
Rhode Island.................................................... 14.15 17.17 -1.87
South Carolina.................................................. 12.14 15.92 -1.54
South Dakota.................................................... 13.19 17.48 -1.20
Tennessee....................................................... 12.44 16.64 -1.60
Texas........................................................... 11.81 15.67 -1.84
Utah............................................................ 12.48 16.86 -1.84
Vermont......................................................... 15.96 19.23 -1.61
Virgin Islands.................................................. 10.98 14.34 -1.59
Virginia........................................................ 13.90 18.40 -2.08
Washington...................................................... 16.53 19.00 -2.49
West Virginia................................................... 12.00 16.15 -1.12
Wisconsin....................................................... 13.29 18.22 -1.29
Wyoming......................................................... 11.34 17.23 -1.32
----------------------------------------------------------------------------------------------------------------
When the OFLC Administrator publishes subsequent updates to the
AEWRs in the Federal Register, as required by 20 CFR 655.120(b)(4) of
this final rule, the adjusted AEWRs will be effective as of the date of
publication in the corresponding Federal Register notices. If the new
AEWR applicable to the employer's certified job opportunity is higher
than the highest of six applicable wage rates--the previous AEWR, the
current prevailing hourly wage rate, the current prevailing piece rate,
the current agreed-upon collective bargaining wage, the current Federal
minimum wage rate, or the current State minimum wage rate, the employer
must pay that adjusted AEWR upon the effective date of the new rate.
See 20 CFR 655.120(b)(5). Conversely, if an updated AEWR for the
occupational classification and geographic area is published in the
Federal Register during the work contract, and the updated AEWR is
lower than the rate guaranteed on the job order, the employer must
continue to pay at least the rate guaranteed on the job order. See 20
CFR 655.120(b)(6).
The Department also acknowledges that there are four different
parties with potential reliance interests that are likely to be
impacted by this IFR: (1)
[[Page 47928]]
agricultural employers; (2) U.S. workers currently, or potentially,
employed in the agricultural sector; (3) non-U.S. workers currently, or
potentially, legally employed in the agricultural sector via the H-2A
rules; and (4) the U.S. consumers of U.S.-grown agricultural
commodities. The Department has carefully considered the impact of this
IFR on each of these groups, especially in this IFR's economic analysis
of transfers and rule familiarization costs. The Department
acknowledges that the overall impact of this new methodology will be a
reduction in the AEWRs, or minimum hourly wage rate floors for H-2A
workers and workers in corresponding employment that are likely to
result in wage transfers to employers as a result of adopting more
precise skill-based AEWRs based on the actual qualifications of the job
opportunity as well as the adverse housing adjustment factor. The
Department acknowledges these reliance interests and has accounted for
them in this IFR, but as an initial matter concludes that they are far
outweighed by other reliance interests and other significant reasons
that support the promulgation of this IFR.
First, the Department believes that, in many ways, the IFR serves
these groups' reliance interests, including those of U.S. agricultural
employers who, by virtue of being recurring seasonal users are the most
likely participants in the H-2A system to have serious reliance
interests. Most significantly, the discontinuation of the FLS by the
USDA has created a regulatory vacuum that this IFR fills. The
Department believes a key reliance interest among these recurring
participants in the H-2A program is to have an AEWR that is published
and can be used for facilitating the preparation of H-2A job orders and
applications at the start of the calendar year, regardless of
regulatory methodology that determines the AEWRs. By putting a new
methodology in place before the start of the calendar year, this IFR
ensures that this reliance interest is not damaged by the regulatory
vacuum caused by the discontinuation of the FLS. The Department
believes that the analysis of rule familiarization costs thoroughly
accounts for the reliance interests of U.S. agricultural employers and
demonstrates that they are offset by the benefits of an increased
supply of H-2A workers.
Moreover, the Department has demonstrated that changes to the AEWR
methodology are necessary to use a more reliable and robust source of
data and that more accurately accounts for both the wide array of
occupations in the H-2A program, and the varying qualifications and
skill levels of the work required by employers. Critically, the
methodological changes contained in this IFR are more reflective of the
market-based wages being paid to U.S. workers similarly employed, and
reducing any distortion caused by the previous AEWR methodology that
created exorbitant wages. Thus, the Department initially concludes that
these changes will allow it to better carry out its statutory mandate
in a manner that balances the needs and interests of workers and
agricultural employers.
Turning to the potential reliance interest of U.S. workers in the
current methodology, the evidence relied on throughout this IFR
strongly indicates that such reliance is tethered to a labor market
that is dramatically changing and increasingly unstable. As discussed,
the current and imminent labor shortage and the subsequent natural
correction of a labor market artificially impacted by illegal aliens
cannot be avoided. The Department simply has no evidence of the
existence of a substantial population of U.S. workers who are willing
and able to accept wage rates that are reasonable and proportionate to
agricultural work but are deterred from entering agricultural work by
AEWR-priced H-2A workers. And such reliance interest is vitiated by the
USDA's discontinuation of the FLS: even if the Department did nothing,
the FLS will cease, thus making any reliance interest on it misplaced
(and, as explained above, reinforcing the benefit of this IFR to
reliance interests by filling the regulatory gap). Such a slight-to-nil
reliance interest is far outweighed by the duty the Department has to
address the now correcting labor market, and implement the AEWR
methodology laid out here, for those lawful H-2A workers, and all of
the other evidence and reasons that are set forth in this IFR.
As to H-2A workers, to the extent such reliance exists, it is based
on voluntary participation in temporary and seasonal work contracts
authorized under the H-2A program. The Department initially concludes
that if such a reliance interest could even be said to exist, it is too
highly attenuated and speculative to be given much if any weight. The
Department also acknowledges that U.S. workers in corresponding
employment may have similar reliance interests, but these interests are
outweighed by the evidence and reasons that support this IFR. And, the
Department expressly acknowledges the bottom-line reliance interest
that these workers may have--their level of expected remuneration in
robust detail in this IFR's analysis of transfers. The Department has
considered other potential reliance interests, such as a H-2A workers
potential financial planning based on an expected level of compensation
rooted in the FLS, but considers these of low weight for two reasons
with respect to this IFR: first, because the USDA's discontinuation of
the FLS already undermines this expectation regardless of this IFR; and
second, because it is highly attenuated, relying on numerous logical
steps for any particular individual. To the extent these are reliance
interests at all, the Department does not consider them to rise to the
level of serious reliance interests requiring further analysis but
welcomes comment on this aspect of the IFR.
Finally, with respect to U.S. consumers of agricultural products,
their potential reliance interests with respect to the H-2A program are
that the program will supply a sufficient level of labor to maintain
the production of agricultural commodities at a reasonable price. This
IFR enhances this reliance interest by filling the aforementioned
regulatory vacuum to ensure the stability of the H-2A system, by making
the AEWR more precise and tethered to the real world skill-level
requirements of jobs, thereby allowing market forces to dictate the
cost of labor, while also eliminating the 2010 AEWR rule that set an
artificially and unreasonably high price floor for H-2A labor.
The Department welcomes public comment on what, if any, reliance
interests exist among these groups, among specific subgroups or
individuals that compose these groups, any groups with reliance
interests that have not been identified, and any evidence or data that
has probative value of any of these issues.
IV. Discussion of Changes to the AEWR Methodology
A. The Department Will Use the OEWS to Determine Skill-Based AEWRs for
all Job Opportunities
As noted in prior rulemaking, the Department has always sought to
use the best available information on occupational wages representing
workers in the United States similarly employed. For the reasons
discussed below, and in light of the determination that immediate
reform to the H-2A program's minimum wage policy, or the AEWRs, is
necessary to avoid widespread disruption across the U.S. agricultural
sector, the Department is amending its methodology to use the average
hourly gross wage reported by the BLS OEWS as the sole source of
[[Page 47929]]
wages for establishing two skill-based AEWRs that account for wage
differentials arising from qualifications contained in the employer's
job offer for all job opportunities under the H-2A program. Although
currently used to establish skill-based prevailing wages for all
agricultural and nonagricultural job opportunities in other
nonimmigrant and immigrant visa programs based on the collection of
employment and wage information from non-farm establishments such as
farm labor contractors, the Department is incorporating farm
establishments into the OEWS sampling methodology beginning in FY 2026.
Once data collection is initiated with the May 2026 semi-annual panel,
the expanded OEWS survey collection may start to reflect occupational
employment and wage information into the two skill-based AEWRs from
farm establishments on and after the May 2027 release. The Department
concludes that this change will ultimately provide more accurate wage
information based on a much larger and robust sample of the employer
establishments employing workers to perform agricultural related
services or labor covering a broader survey reference period across all
states where employers may seek labor certification to employ foreign
workers for temporary or permanent employment in the United States. The
adoption of the OEWS as the sole source of employment and wage
information will provide the Department with a single source of data,
within its control, that can consistently and more precisely establish
skill-based prevailing wages, including AEWRs, for all job
opportunities specific to each state, which the FLS is not capable of
reporting.
For many years, the Department has noted that wage data available
in the FLS and the OEWS represent the best information available for
determining the AEWRs in the H-2A program. The FLS collected employment
and wage information based on a survey of farm and ranch
establishments, which included any establishment with $1,000 or more in
annual agricultural sales (or potential sales), semiannually in April
and October.\91\ The survey was conducted primarily by mail or online,
with telephone follow-ups to obtain responses from nonrespondents, or,
if needed, to clarify written responses. Beginning with the July and
October 2021 timeframe, the FLS utilized a smaller national sample size
of over 16,000 operations to align with reductions in funding for the
statistical program and adjustments for declining survey participation
rates. The survey requested that employers provide, in aggregate and by
occupation, the total number of hired workers, the total hours worked
by all hired workers, and the total weekly gross wages paid to all
hired workers in each occupation during the second weeks of January,
April, July, and October. Gross wages were defined as the total amount
paid to workers before taxes and other deductions, including overtime,
bonus pay, workers' shares of social security and unemployment
insurance, and other in-kind payments (e.g., agricultural products
provided in lieu of wages), but not including benefits such as housing,
meals, or insurance. USDA used these data to estimate the employment,
average hours, and gross wages for a subset of six occupational
classifications covering field and livestock workers (combined) and
other hired workers in January and April (published in May) and in July
and October (published in November). Separate estimates were published
for each of the six individual occupations and for farm managers and
supervisors at the national level, but not for each state or farm
production region due to insufficient sample sizes. Further, because it
collects aggregate data related to the gross wages paid to all hired
workers in each occupation, as opposed to the gross wages paid to each
hired worker in each occupation during the reference period, the FLS is
not capable of reporting more precise wage estimates for any
occupation-specific wage distribution to approximate wage differentials
paid to U.S. workers similarly employed in a particular occupation and
state.
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\91\ The NASS Agricultural Labor Survey is typically conducted
semi-annually in April and October, in all surveyed states except
California. For the current survey iteration, California labor data
were collected on a quarterly basis, through the California
Employment Development Department (EDD) program.
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Separately, the BLS OEWS survey remains the largest ongoing
statistical survey program of the federal government, producing
employment and gross wage estimates for more than 830 SOC codes, and is
used as the primary wage source for establishing skill-based prevailing
wage determinations at local and state geographic areas in other
nonimmigrant and immigrant visa programs administered by the
Department.\92\ The OEWS survey primarily covers wage and salary
workers in non-farm establishments and does not include the self-
employed, owners and partners in unincorporated firms, household
workers, or unpaid family workers.\93\ Like the FLS, the survey is
conducted primarily by mail, with telephone follow-ups to
nonrespondents, or, if needed, to clarify written responses.\94\ Each
year, two semiannual panels of approximately 179,000 to 187,000 sampled
establishments are contacted, one panel in May and the other in
November. Thus, the OEWS employment and gross wage estimates are
constructed from a sample of about 1.1 million establishments collected
over a 3-year period, which allows the production of data at detailed
levels of geography, industry, and occupation and accounts for
approximately 57 percent of employers in the United States.\95\ OEWS
data are published annually with a May reference date. Wages are
defined as straight-time, gross pay, including piece rates, but, unlike
the FLS, excludes other forms of pay such as overtime, shift
differentials, and non-production or any year-end bonuses.\96\ Further,
because it collects the gross wages paid to each worker in each
occupation during the reference period, the OEWS can consistently
report more precise wage estimates for any occupation-specific wage
distribution to approximate wage differentials paid to U.S. workers
similarly employed in a particular occupation and state.
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\92\ See, e.g., 20 CFR 655.731(a)(2)(ii)(A) (H-1B program, for
specialty (professional) workers) and 20 CFR 656.40(b)(2) (Permanent
Labor Certification program, for permanent employment of foreign
workers).
\93\ Although the OEWS has not historically covered farm
establishment, the survey was expanded in 2011 to cover farms as
part of the Green Goods and Services program but subsequently cut as
part of the sequestration due to the Budget Control Act of 2011. See
Stella D. Fayer, ``Agriculture: Occupational Employment and Wages,''
Monthly Labor Review, DOL, BLS, July 2014, <a href="https://doi.org/10.21916/mlr.2014.25">https://doi.org/10.21916/mlr.2014.25</a>. The President's budget request for FY 2024 includes
$1,137,000 to restore data collection for agricultural industries to
the OEWS program. See Department of Labor, FY 2024 Congressional
Budget Justification, Bureaus of Labor Statistics, <a href="https://www.dol.gov/sites/dolgov/files/general/budget/2024/CBJ-2024-V3-01.pdf">https://www.dol.gov/sites/dolgov/files/general/budget/2024/CBJ-2024-V3-01.pdf</a>.
\94\ Id.
\95\ See Occupational Employment and Wage Statistics Frequently
Asked Questions, BLS. Available at: <a href="https://www.bls.gov/oes/oes_ques.htm">https://www.bls.gov/oes/oes_ques.htm</a> (last modified Aug. 13, 2021).
\96\ The OEWS uses the term ``mean.'' However, for purposes of
this regulation the Department uses the term ``average'' because the
two terms are synonymous, and the Department has traditionally used
the term ``average'' in setting the AEWR from the FLS.
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As explained through extensive rulemaking, the Department seeks to
rely on the best available information to carry out its statutory
mandate and has acknowledged that neither the FLS nor the OEWS are
perfect as both surveys
[[Page 47930]]
have shortcomings.\97\ In a March 2024 study comparing occupational
wage data collected across a wide array of government-based surveys,
the Congressional Research Service (CRS) affirmed the Department's
finding that the ``FLS and the OEWS are the only data sources currently
available that provide state- or region-level wage estimates for
agricultural occupations.'' \98\ In addition, in a survey of farm and
ranch establishments that directly hire workers, CRS similarly observed
that the FLS provides wage estimates only for field and livestock
worker (combined) occupations and does not reflect wages paid by farm
establishments for agricultural labor or services provided by workers
who are employed by farm labor contractors, or non-farm support
establishments, or any wage information for farm establishments in
Alaska or the U.S. territories. Regarding the OEWS, CRS noted that the
survey publishes wage estimates by occupation for a wide array of
local, state, and national geographic areas across all non-farm
industries, but does not publish wage estimates within the ``Crop
Production'' or ``Animal Production'' industries that are generally
covered by the FLS. However, with the discontinuation of the FLS by
USDA and based on a determination to establish skill-based AEWRs that
account for wage differentials arising from qualifications contained in
the employer's job offer for all job opportunities under the H-2A
program, the Department has determined that the OEWS survey is the best
available alternative source of employment and wage information to use
in determining the AEWRs. Accordingly, the Department has made
corresponding revisions to 20 CFR 655.120 by removing references to the
USDA FLS.\99\ The Department will use the OEWS as the sole wage source
for determining two skill-based AEWRs for all SOC codes, including
those covered by the field and livestock workers (combined) category
and those not included like first-line supervisors of farm workers or
construction laborers where the duties, skills, and qualifications are
the same or substantially similar to U.S. workers employed by non-farm
establishments.
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\97\ See 73 FR at 7713 where the Department notes that ``the FLS
and the OES survey are the leading candidates among agricultural
wage surveys potentially available to the Department to set AEWRs.
Neither survey is perfect. In fact, both surveys have significant
shortcomings. On balance, however, the Department has concluded that
in light of the current prevalence of illegal aliens in the
agricultural labor market, AEWRs derived from OES survey data will
be more reflective of actual market wages than FLS data, and thus
will best protect the wages and working conditions of U.S. workers
from adverse effects.''
\98\ The CRS study compared the agricultural wage data currently
used in calculating the AEWR with the wage data available from the
Agricultural Resources Management Survey (ARMS), the Census of
Agriculture (COA), the American Community Survey (ACS), the Current
Population Survey (CPS), the Quarterly Census of Employment and
Wages (QCEW), the National Economic Accounts, and the National
Agricultural Workers Survey (NAWS). See Elizabeth Weber Handwerker,
Measuring Wages in the Agricultural Sector for the H-2A Visa
Program, Congressional Research Service, Report No. R47944 (March 5,
2024). Available at: <a href="https://www.congress.gov/crs-product/R47944">https://www.congress.gov/crs-product/R47944</a>.
\99\ The Department has acknowledged in prior rulemaking that
USDA controlled administration of the FLS, suspended the survey
several times in the past, and retained discretion to unilaterally
revise the survey methodology. See United Farm Workers v. Perdue,
No. 1:20-cv-01452-DAD-JLT, 17-18 (E.D. Cal. Oct. 28, 2020) (citing
USDA-DOL MOU at 2-6). The possibility of future instability in
administration of the FLS, was one reason the Department decided to
leverage the OEWS as a secondary wage source for field and livestock
workers (combined) job opportunities. See 88 FR at 12769 (Adopting
proposal to ``use the OEWS to determine a statewide AEWR'' for field
and livestock workers ``in the unanticipated circumstance that the
FLS survey becomes unavailable (e.g., suspension of the survey) . .
.'').
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In this IFR and in light of the determination by USDA to
discontinue the FLS based on its own statutory authority, the
Department affirms the strengths of using the OEWS as an authoritative
source of employment and wage information for determining skill-based
AEWRs. For many reasons, the Department has determined that the OEWS
remains the most comprehensive, reliable, and stable source of
occupational employment and wage information available for determining
skill-based AEWRs in the H-2A program. First, as use of the H-2A
program has broadened to include on-farm and off-farm employment, the
multisector reach of the OEWS survey does a better job of accurately
reflecting market wage rates for occupations where workers are
primarily employed in jobs outside the field and livestock workers
(combined) category, such as first-line supervisors, heavy truck
drivers, and construction workers because, as the Department previously
concluded, these occupations ``inherently include work both in and
outside the agricultural sector.'' \100\
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\100\ Id. at 12770.
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Second, unlike the FLS, the capability of the OEWS to consistently
aggregate wage estimates at a statewide level will better protect
against the potential for depressive wage effects, if any, that may
occur due to large numbers of nonimmigrant agricultural workers
employed in more concentrated local areas within a state. Specifically,
when discussing its preference for using the OEWS because the survey
reports wages for each occupational classification at a geographic
level above a specific crop activity, the Department concluded that an
``AEWR based on an occupational classification that accounts for
significantly different job duties but remains broader than a
particular crop activity or agricultural activity in a local area may
better protect U.S. workers.'' \101\ Thus, for many decades, the
Department ``consistently has set statewide AEWRs rather than substate
. . . AEWRs because of the absence of data from which to measure wage
depression at the local level'' and because use of surveys reporting
data at a broader geographic level ``immunizes the survey from the
effects of any localized wage depression that might exist.'' \102\ As
previously discussed regarding its sampling structure and methodology,
the OEWS is capable of producing employment and wage estimates
consistently at the statewide level and for any particular occupation
or group of occupations, which more precisely estimates the wages paid
of U.S. workers similarly employed in that state. Conversely, the FLS
cannot report wage estimates for each state, except for California,
Florida, and Hawaii, and cannot report wage estimates at the state or
regional levels for any occupation outside the field and livestock
worker (combined) category of occupations. Therefore, the Department
concludes that the more precise statewide data available from the OEWS,
whether for a particular occupation or group of occupations, better
protects the wages of U.S. workers similarly employed where employers
may be seeking to employ H-2A workers in that same occupation(s) within
the state.
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\101\ 84 FR at 36182 (citation omitted).
\102\ 75 FR at 6895.
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Third, the OEWS methodology incorporates a much larger sample size
of establishments (1.1 million total non-farm establishments) \103\ and
generates higher survey response rates (approximately 65 percent),\104\
as compared to smaller sample size (estimated 16,000 total farm
establishments) and lower response rates (approximately 44 percent) of
the FLS, which provides greater confidence to the Department in the
accuracy of the employment and wage estimates produced by the BLS.
Fourth, due to its larger sample size and time series panel
methodology, the OEWS has the capability of consistently providing
employment and wage estimates by SOC code at a state, regional, and
national level. Conversely, as mentioned previously, the FLS can only
produce
[[Page 47931]]
employment and wage estimates by SOC code at a national level due to
its significantly reduced sample size and methodology.\105\ Fifth, due
to its robust capacity to produce estimates at broad geographic levels
spanning a three-year aggregated timeseries collection, the OEWS data
are more reliable, representative, and generally experience lower rates
of volatility on a year-over-year basis. While the FLS calculates
annual findings from quarterly estimates of data collected during one
calendar year cycle, each set of OEWS estimates used across other
nonimmigrant and immigration visa programs is calculated from six
panels of survey data collected over three years, which tends to
moderate year-over-year fluctuations in wage rates.
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\103\ Id. at 6, 10.
\104\ Handwerker at 6.
\105\ Id. (Noting the FLS was expanded briefly from 2018-2020 to
provide occupation-specific wages at a smaller geographic scale and
with expanded sample sizes, but USDA reverted to smaller sample
sizes and the prior survey scope after suspending the survey
entirely in 2020).
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Sixth, unlike the FLS, the OEWS survey produces wage estimates
based on straight-time, gross pay, and excludes monetary compensation
related to overtime pay, on-call pay, severance pay, shift
differentials, year-end and other nonproduction bonuses, and employer
costs for supplementary benefits (e.g., uniform, tuition). As multiple
states in recent years have enacted legislation requiring overtime pay
for agricultural workers, employers have expressed concerns that the
FLS is vulnerable to producing artificially high average wages because
overtime pay and other forms of premium pay are not being excluded from
the collection of gross compensation data from farm establishments.
Thus, by adopting the OEWS as the wage source for estimating skill-
based AEWRs, the Department is seeking to address this concern while
achieving greater consistency in the computation of average hourly wage
rates in the H-2A program with those already used in temporary and
permanent visa programs where overtime pay is excluded from determining
prevailing wages.
And finally, although it does not primarily survey farm
establishments, farm labor contractors, which are covered by the OEWS,
are increasingly utilized by agricultural employers, to employ workers
to provide agricultural labor or services similar to that of workers
employed by fixed-site agricultural employers thus making use of the
OEWS data important to determining representative, market-based wages.
Agricultural labor contractor employment has grown in recent years
\106\ and H-2 labor contractors (H-2ALCs) represent an increasing share
of the H-2A worker positions certified by the Department.\107\ For
example, from FY 2020 through FY 2023, the Government Accountability
Office (GAO) found that H-2ALCs ``accounted for 42 percent of the jobs
approved during the period'' in the H-2A program \108\ and the USDA
found that ``the FLC share of H-2A workers increased from 15 percent to
42 percent from FY 2010 to FY 2019.'' \109\ FLC employment is
increasingly common in specific sectors, such as the vegetable crop
sector (40%), and fruit and nut crop sector (57%) \110\ and data shows
``vegetable and melon farming or fruit and tree nut farming accounted
for most of the approved H-2A applications,'' according to GAO and USDA
research.\111\ FLCs may also be more commonly employed in support of
smaller farms, as ``smaller farms turn to FLCs because H-2A visa
programs can be difficult to navigate'' for these employers.\112\ Based
on a review of the Department's more recent public H-2A labor
certification records for FY 2024 and FY 2025, H-2ALCs continued to
account for a significant percent of all H-2A jobs certified as more
than 163,200 of the 379,300 jobs, or 43 percent of the total, were
approved during FY 2024 for H-2ALCs. In addition, from October 1, 2024,
through June 30, 2025, more than 134,200 of the 317,400 H-2A jobs
certified, or 42 percent of the total, were approved during FY 2025 for
H-2ALCs.\113\ In comparison, the now-discontinued FLS suffered from the
flaw of not surveying at all the large proportion of agricultural labor
that is supplied by FLCs.\114\
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\106\ Farm Labor (Jan. 8, 2025). USDA (Noting From 2013 to 2023,
agricultural employment increased most ``in crop support services
(which added about 17,400 jobs, a 6 percent increase). Available at:
<a href="https://www.ers.usda.gov/topics/farm-economy/farm-labor">https://www.ers.usda.gov/topics/farm-economy/farm-labor</a>; NAWS Data
Finder: U.S. Crop Workers' Employer Type, All Available Years. U.S.
DOL, National Agricultural Workers Survey (indicating the total
share of FLC employment in agricultural recently has risen from
14.99% in the 2014-18 period to 16.95% in the 2019-22 period).
Available at: <a href="https://www.dol.gov/agencies/eta/national-agricultural-workers-survey/naws-data-table/naws-data-finder-results">https://www.dol.gov/agencies/eta/national-agricultural-workers-survey/naws-data-table/naws-data-finder-results</a>; 88 FR 12760, n. 71 (citations omitted) (noting the USDA
Economic Research Service (ERS) reported that H-2ALCs (also known as
Farm Labor Contractors (FLC)) have become the dominant employer type
in the vegetable and melon sector--among the most labor-intensive
agricultural sectors in the United States. Specifically, USDA ERS
noted that ``the number of certifications obtained by both
individual employers and FLCs increased every year between 2011 and
2019; however, the number of certifications obtained by FLCs
increased faster, which led contractors to overtake individual
employers in 2016. The share of certifications obtained by FLCs
steadily increased from 17 percent in 2011 to its maximum of 57
percent in 2018, decreasing slightly to 53 percent in both share and
number in 2019.'' Noting also that the Department's own review of H-
2A applications covering all agricultural sectors certified by OFLC
during the most recent 3 fiscal years covering October 1, 2019,
through September 1, 2022, indicated the proportion of H-2A worker
positions certified for employers operating as H-2ALCs increased
from 36 percent in FY 2020 to more than 43 percent in FY 2022. In FY
2020, of the 275,430 worker positions certified nationally, 99,505
(or 36.1 percent) were issued to H-2ALCs. From October 1, 2021,
through September 1, 2022, for FY 2022, of the 352,103 worker
positions certified nationally, 151,706 (or 43.1 percent) were
issued to employers operating as H-2ALCs).
\107\ 88 FR 12760, n. 60 (Noting, for example, the proportion of
all H-2A worker positions certified by the Department for employment
in non-range occupations with employers qualifying as H-2A Labor
Contractors (i.e., farm labor contractors) has increased
significantly from 33.1 percent in FY 2016 (54,787 positions out of
165,741 positions) to 42.6 percent in FY 2021 (135,314 positions out
of 317,619 total positions) and 43.1 percent through August FY 2022
(151,439 positions out of 351,268 total positions)).
\108\ H-2A Visa Program: Agencies Should Take Additional Steps
to Improve Oversight and Enforcement (Nov. 2024), 9. U.S. Government
Accountability Office. GAO-25-106389. Available at: <a href="https://www.gao.gov/assets/gao-25-106389.pdf">https://www.gao.gov/assets/gao-25-106389.pdf</a>.
\109\ Id. (citing Examining the Growth in Seasonal Agricultural
H-2A Labor, Economic Information Bulletin No. 226, U.S. Department
of Agriculture, Economic Research Service (Washington, DC: Aug.
2021)).
\110\ See Findings from the National Agricultural Workers Survey
(NAWS) 2021-2022: A Demographic Employment Profile of United States
Crop Workers (Sept. 2023), 2, 26 (Finding H-2ALC employees now
constitute 22 percent of all crop workers, 28% of all crop
harvesters, 40% of vegetable crop sector workers, and 57% of fruit
and nut crop workers). Available at: <a href="https://www.dol.gov/sites/dolgov/files/ETA/naws/pdfs/NAWS%20Research%20Report%2017.pdf">https://www.dol.gov/sites/dolgov/files/ETA/naws/pdfs/NAWS%20Research%20Report%2017.pdf</a>.
\111\ H-2A Visa Program: Agencies Should Take Additional Steps
to Improve Oversight and Enforcement, 10 (Nov. 2024). U.S. GAO, GAO-
25-106389. Available at: <a href="https://www.gao.gov/assets/gao-25-106389.pdf">https://www.gao.gov/assets/gao-25-106389.pdf</a>; Castillo, et al. Examining the Growth in Seasonal
Agricultural H-2A Labor (Aug. 2021), EIB-226, USDA, ERS (Finding the
vegetable and melon sector is ``the largest H-2A employer . . .
since 2016,'' and ``FLC prominence'' in this sector is due to
``contract labor play[ing] an important role in production of these
crops.'' The report also found ``fruit and tree nuts led other
sectors . . . (behind vegetable and melons) in number of H-2A
certifications . . . with an annual rate of growth of 20 percent . .
.'' and noted ``FLCs are the dominant H-2A employers in fruit and
tree nuts.''). Available at: <a href="https://ers.usda.gov/sites/default/files/_laserfiche/publications/102015/EIB-226.pdf?v=97406">https://ers.usda.gov/sites/default/files/_laserfiche/publications/102015/EIB-226.pdf?v=97406</a>.
\112\ Id.
\113\ Based on a review of public H-2A labor certification
disclosure records certified by the Department and available on the
OFLC Performance Data website for FYs 2024 and 2025, Quarter 3, at
<a href="https://www.dol.gov/agencies/eta/foreign-labor/performance">https://www.dol.gov/agencies/eta/foreign-labor/performance</a>.
\114\ See e.g., 90 FR at 42561.
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The Department's concern expressed in prior rulemaking that the
OEWS, as currently administered, may not survey a sufficient cross-
section of agricultural workers to represent market-based wages,\115\
is being addressed outside this IFR, as the Department will ensure
long-term stability in determining the
[[Page 47932]]
AEWRs using a more comprehensive OEWS data set based on a more robust,
accurate, and reliable set of wage data from farm establishments.
Specifically, the Department is working collaboratively with USDA, due
to its expertise in identifying farm establishments, to initiate
expansion of the OEWS survey universe of employers in FY 2026 by
incorporating employers in key agricultural industries, such as crop
and animal production sectors, into its semi-annual sampling
methodology and model estimation procedures. As the semi-annual panels
begin to incorporate employment and wage estimates from these farm
establishments on and after May 2026, the OEWS survey will increasingly
strengthen its ability to provide more accurate and reliable
information to the Department and the general public on the employment
and average wages paid to U.S. workers similarly employed in
agricultural related occupations. Taking into consideration the
decision to establish more precise skill-based AEWRs for each state,
the strengths of the OEWS to produce occupation-specific wages that
accounts for wage differentials for every state, and planned expansion
of the survey to incorporate farm establishment data into its time
series methodology, the Department concludes that the resulting
employment and wage estimates will better reflect wages paid to U.S.
workers performing agricultural related labor or services across all
types of establishments and covering a broad geographic area at the
state level, leading ultimately to more comprehensive and accurate wage
data that cannot be reported by the FLS.
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\115\ See e.g., 75 FR at 6899.
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As previously discussed, Congress has delegated broad discretion to
the Department in determining the sources and methods that best allows
it to meet its statutory mandate, while striking a reasonable balance
between the statute's competing goals of providing employers with an
adequate supply of legal agricultural labor and protecting the wages
and working conditions of workers in the United States similarly
employed. For all the reasons previously stated, the Department
concludes that the policy decision to use the unique strengths of the
OEWS for establishing skill-based AEWRs, which are not available
through the FLS, and inclusive of its planned expansion to collect
employment and wage information from farm establishments, will provide
one comprehensive source of more accurate and representative market-
based wages, based on samples of employers and workers covering all
agricultural related occupations and types of establishments, thereby
better approximating the actual wages of U.S. workers similarly
employed based on the duties and qualifications associated with the
agricultural work being performed.
B. The Department Will Determine the AEWRs at Two Skill Levels To
Better Reflect the Average Wages Paid to U.S. Workers Similarly
Employed
As discussed in detail below, the Department will determine the
AEWRs using the best available data from the OEWS that reasonably
reflects labor market dynamics and most closely approximates the
average wages earned by U.S. workers performing similar work and
possessing the same or substantially similar qualifications (e.g., job
requirements, experience, tools) as those employers expect of H-2A
workers.
Under revisions adopted in this IFR at 20 CFR 655.120(b)(1)(i) and
(ii) and (b)(2), the Department will determine the AEWRs for H-2A job
opportunities using the annual average hourly gross wage in the U.S.
state or territory according to two skill or qualification levels:
Skill Level I (Entry-Level) and Skill Level II (Experience-Level). A
Skill Level I AEWR is associated with job offers containing
qualifications commensurate with entry-level positions where workers
need no formal education or specialized training credentials. In
addition, employers typically require no or very little work-related
experience under the Occupational Information Network (O*NET) \116\
system (e.g., up to 2 months of related work experience cultivating
diversified vegetable crops) or, alternatively, may require a short
demonstration (e.g., several weeks of on-the-job training) on how to
perform the work by a more experienced employee, lasting anywhere from
a few days to a few weeks. Employers seeking employees for this level
of position require them to follow instructions from a supervisor or
team leader on the employer's agricultural methods and practices, use
common equipment and tools to successfully perform the work, and help
others as part of a work crew. Work performed by these employees is
closely monitored, tracked, and assessed for quality, accuracy, and
production results. In accordance with new paragraph (b)(2)(i), a Skill
Level I AEWR will be computed as the average hourly gross wage paid to
the lower one-third of all workers in the five SOC codes comprising the
field and livestock workers (combined) category or, for occupations
outside of that category, the average hourly gross wage paid to the
lower one-third of all workers in the specific SOC code assigned to the
employer's job opportunity. A Skill-Level I AEWR is computed at the
equivalent of the 17th percentile of the occupational wage
distribution, which is similar to the skill-based prevailing wages for
other nonimmigrant and immigrant visa programs administered by the
Department.
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\116\ The O*NET system was created for the general public to
provide broad access to the O*NET database of occupational
information. O*NET is a database of information on skills,
abilities, knowledges, work activities, and interests associated
across more than 820 occupational classifications based on the 2018
version of the Standard Occupational Classification system. This
information can be used to facilitate career exploration, vocational
counseling, and a variety of human resources functions, such as
developing job orders and position descriptions and aligning
training with current workplace needs. Additional information on the
O*NET system is available at <a href="https://www.onetonline.org">https://www.onetonline.org</a> (last
visited August 21, 2025).
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A Skill Level II AEWR is associated with job offers containing
qualifications commensurate with experience-level or qualified
employees who possess, either through education, training, or
experience, demonstrated skills or knowledge to perform the work
covering the SOC code(s). Depending on the occupational classification,
these positions may normally require some formal education or training
credentials or certificates. In addition, employers typically require
work-related experience at a level that is normal for the occupation
under the O*NET system (e.g., 3 months of related work experience
harvesting apples) and generally do not require a short demonstration
on how to perform the work by a more experienced employee. Employers
who hire employees into this level of position may also expect workers
to perform moderately complex tasks (e.g., harvesting ``first pick''
apples for firmness, color, and placement on the tree) and follow
instructions from a supervisor or team leader on the employer's
agricultural methods and practices, use common equipment and tools to
successfully perform the work, and help others as part of a work crew.
Work performed by these employees is not as closely monitored as
employees in Skill Level I, but production may still require some level
of tracking and assessment of quality when immediate delivery is to
market. In accordance with new paragraph (b)(2)(ii), a Skill Level II
AEWR will be computed as average hourly gross wage paid to all workers
in the five SOC codes comprising the field and livestock
[[Page 47933]]
workers (combined) category or, for occupations outside of that
category, the average hourly gross wage paid to all workers in the
specific SOC code assigned to the employer's job opportunity. A Skill-
Level II AEWR is computed at the equivalent of the 50th percentile of
the occupational wage distribution, which is similar to the skill-based
prevailing wages for other nonimmigrant and immigrant visa programs
administered by the Department.
The description and application of each skill level adopted in this
IFR is based on the totality of the circumstances of an employer's job
offer and designed to be consistent with skill-based levels required
under the INA and used by the Department in its prevailing wage
determinations for employers seeking to hire H-1B temporary
nonimmigrant workers and permanent immigrant workers, as discussed
further below.\117\ In other words, if this same agricultural employer
sought labor certification from the Department to sponsor a foreign
worker for permanent year round work to support its farming operation,
the Department would conduct a similar assessment of the qualifications
contained in the employer's job offer and assign a market-based wage
that best approximates the average wage paid to U.S. workers similarly
employed in the geographic area. The Department concludes employers
seeking temporary nonimmigrant workers under the H-2A visa
classification should receive an AEWR determination that also takes
into account the qualifications of the employer's job offer to better
effectuate the requirement to, protect the wages of U.S. workers
similarly employed and more closely align the wage standard in the H-2A
program with the wage standards in other employment-based immigration
programs which use skill-based wage levels.\118\
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\117\ See Section 212(p)(4) of the INA stating, in pertinent
part, that ``[w]here the Secretary of Labor uses, or makes available
to employers, a governmental survey to determine the prevailing
wage, such survey shall provide at least 4 levels of wages
commensurate with experience, education, and the level of
supervision.'' Although this provision was enacted in the context of
the H-1B temporary nonagricultural visa classification, and also
applies to the PERM immigrant visa program, it is the only paragraph
in Section 212(p) that does not reference any specific immigration
programs to which it applies, and there is no legislative history
indicating that it was meant to apply only to the H-1B program. For
more detailed information regarding the four skill levels utilized
by the Department, please see Employment and Training Administration
Prevailing Wage Determination Policy Guidance Nonagricultural
Immigration Programs, Revised November 2009 located at <a href="https://www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/NPWHC_Guidance_Revised_11_2009.pdf">https://www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/NPWHC_Guidance_Revised_11_2009.pdf</a>.
\118\ Under 8 U.S.C. 1182(a)(5)(A) of the Immigration and
Nationality Act (INA or Act), certain aliens may not obtain
immigrant visas for entrance into the United States in order to
engage in permanent employment unless the Secretary of Labor has
first certified to the Secretary of State and to the Secretary of
Homeland Security that: (1) There are not sufficient United States
workers who are able, willing, qualified and available at the time
of application for a visa and admission into the United States and
at the place where the alien is to perform the work; and (2) The
employment of the alien will not adversely affect the wages and
working conditions of United States workers similarly employed.
Additionally, under 8 U.S.C. 1182(n)(1), no alien may be admitted or
provided status as an H-1B nonimmigrant in an occupational
classification unless the employer has filed with the Secretary of
Labor an application stating the following: (A) The employer--(i) is
offering and will offer during the period of authorized employment
to aliens admitted or provided status as an H-1B nonimmigrant wages
that are at least (I) the actual wage level paid by the employer to
all other individuals with similar experience and qualifications for
the specific employment in question, or (II) the prevailing wage
level for the occupational classification in the area of employment,
whichever is greater, based on the best information available as of
the time of filing the application, and (ii) will provide working
conditions for such a nonimmigrant that will not adversely affect
the working conditions of workers similarly employed.
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For the reasons discussed below, and after the appropriate SOC
code(s) are assigned to the job opportunity, the State Workforce Agency
(SWA) and OFLC Certifying Officer (CO) will make an AEWR determination
for the U.S. state or territory using one of two skill levels based on
a comparison of the qualifications (e.g., education, and training)
contained in the employer's job offer that it expects employees to
possess for acceptable work performance. Although the vast majority of
certified H-2A job opportunities are concentrated in the five field and
livestock worker (combined) occupational category, the market for
agricultural labor or services is far more diversified and covers a
broad spectrum of occupations with differing degrees of job
qualifications that generate different levels of wage compensation.
Despite a common stereotype that agricultural jobs are ``unskilled''
and typically do not require formal education or training credentials
or certificates like the specialty occupations in the H-1B temporary
nonimmigrant and PERM immigrant program, the Department has previously
noted, as far back as 2008, that the ``farm labor market is not a
monolithic entity,'' but is comprised of ``a number of occupations and
skills'' distributed across ``a matrix of markets'' and a ``spectrum of
occupations, skill or experience levels . . .'' \119\ In fact, based on
a review of H-2A labor certification records for FY 2024, the
Department issued labor certifications across more than 60 different
SOC codes containing a wide array of qualifications ranging from crop
and nursery work to supervisors, animal trainers, equipment mechanics
and technicians, heavy truck drivers, and commercial pilots.
---------------------------------------------------------------------------
\119\ 73 FR at 8550.
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The methodology adopted in this IFR also addresses some of the more
substantial concerns expressed by users of the H-2A program--
agricultural employers and associations--who have long contended that
the AEWR cannot be an accurate reflection of market wages paid to
similarly employed workers if the Department fails to differentiate
wage data based on the ``level of skill or experience required for a
position.'' \120\ Many stakeholders have urged the Department to adopt
a tiered wage system, accounting for ``experience, skill,
responsibility, and difficulty variations within each occupation,''
similar to the system mandated by Congress in the H-1B nonimmigrant
program.\121\ The Department agrees and acknowledges that it is
generally accepted that differences in wages among workers within a
given occupation can be attributed to a number of characteristics and
qualifications such as education, work experience, complexity of tasks,
training, and requirements like licensure, as well as characteristics
like union v. non-union and full-time v. part-time or temporary.\122\
While it is administratively infeasible to precisely
[[Page 47934]]
pinpoint every reason that workers within a given occupation receive
significantly different pay, the Department concludes that the
existence of wage differences can be attributed, to a large degree, to
these characteristics and qualifications possessed by incumbent workers
performing work within a given occupation. This is supported by the
Department's extensive experience assessing the duties and
qualifications of job opportunities, including those from employers in
the agricultural sector, applying for labor certification to employ
foreign nationals temporarily under the H-1B visa classification or in
permanent employment in the United States. Specifically, for more than
20 years, the Department has used one of four skill-based wage levels
for a given occupational classification based on a comparison of the
qualifications contained in the employer's permanent or temporary H-1B
job offer related to the occupational duties or tasks, knowledge,
skills, and specific vocational preparation (i.e., education, training,
and experience) generally required of prospective applicants for
acceptable performance in the position. A detailed description of the
tasks, knowledge, and skills in the employer's job opportunity,
including level of complexity, judgement, supervision and understanding
required to perform the duties, help determine the appropriate skill-
based prevailing wage for these job opportunities. Further, information
contained in the O*NET related to education, and training provides
guidance in determining whether the job offer is for an entry-level,
qualified, experienced, or fully competent employees; each of which
corresponds to higher skill-based wage levels as minimum qualifications
in the employer's job offer increases.
---------------------------------------------------------------------------
\120\ 75 FR at 6899.
\121\ Id. at 6900.
\122\ See, e.g., Introducing Modeled Wage Estimates by Grouped
Work Levels, U.S. DOL, BLS (noting ``wages tend to increase along
with the progression in work level'' necessitating information about
``differences in pay for entry, intermediate, and experienced work
levels.''). Available at: <a href="https://www.bls.gov/opub/mlr/2022/article/introducing-modeled-wage-estimates-by-grouped-work-levels.htm">https://www.bls.gov/opub/mlr/2022/article/introducing-modeled-wage-estimates-by-grouped-work-levels.htm</a>; How
Much Could I Be Earning? Using Occupational Employment and Wage
Statistics Data During Salary Negotiations, BLS (``Where an
individual's wage should fall within the national distribution
depends on a number of factors. Of course, experience and education
are factors.''). Available at: <a href="https://www.bls.gov/oes/earnings.pdf">https://www.bls.gov/oes/earnings.pdf</a>;
Modeled Wage Estimates for Entry, Intermediate, and Experienced
Grouped Work Levels, BLS (Explaining use of wage modeling to group
``occupations like food preparation workers and nursing assistants''
into two wage levels corresponding with ``entry and experienced
levels.''). Available at: <a href="https://www.bls.gov/mwe/factsheets/grouped-work-levels-factsheet.htm">https://www.bls.gov/mwe/factsheets/grouped-work-levels-factsheet.htm</a>; Torpey, Elka, Same Occupation,
Different Pay: How Wages Vary (2015), BLS (``Large differences in
wages may be the result of a combination of factors, such as
industry of employment, geographic location, and worker skill.'')
Available at: <a href="https://www.bls.gov/careeroutlook/2015/article/wage-differences.htm">https://www.bls.gov/careeroutlook/2015/article/wage-differences.htm</a>; Learn More, Earn More: Education Leads to Higher
Wages, Lower Unemployment, BLS. Available at: <a href="https://www.bls.gov/careeroutlook/2020/data-on-display/education-pays.htm">https://www.bls.gov/careeroutlook/2020/data-on-display/education-pays.htm</a>.
---------------------------------------------------------------------------
Additionally, the BLS has noted that work experience and training
contributes to wage differentials, with ``experienced workers usually
earn[ing] more than beginners,'' and recent data suggests work
experience may be a significant factor in within-occupation wage
differentials in agriculture.\123\ Wages may also differ within an
occupation based on required skills and the wage may increase where
there is a requirement for ``in-demand skills . . .'' \124\
Additionally, workers who ``hold professional certification or
licensure may earn more than other workers in the same occupation . .
.'' \125\ Within a particular occupation, and even with the same
employer, wages may also differ based on complexity of tasks and level
of responsibility.\126\ Even in lesser skilled occupations, the
Department believes these factors can explain much of the identified
within-occupation wage differentials.\127\
---------------------------------------------------------------------------
\123\ Torpey (2015) (``Large differences in wages may be the
result of a combination of factors, such as industry of employment,
geographic location, and worker skill.''). Available at: <a href="https://www.bls.gov/careeroutlook/2015/article/wage-differences.htm">https://www.bls.gov/careeroutlook/2015/article/wage-differences.htm</a>;
Findings from the National Agricultural Workers Survey (NAWS) 2021-
2022: A Demographic Employment Profile of United States Crop Workers
(Sept. 2023), 28. U.S. DOL-ETA (A survey of agricultural workers
indicated ``[h]ourly wages increased with respondents' number of
years working for their current employer'' and varied from ``$13.72
per hour'' for workers with 1-2 years of experience in the job to
``$15.56 per hour'' for workers with 11 or more years in the job.).
Available at: <a href="https://www.dol.gov/sites/dolgov/files/ETA/naws/pdfs/NAWS%20Research%20Report%2017.pdf">https://www.dol.gov/sites/dolgov/files/ETA/naws/pdfs/NAWS%20Research%20Report%2017.pdf</a>; Sullivan, Paul, Empirical
Evidence on Occupation and Industry Specific Human Capital (Jun.
2010), Labour Economics, 17:3 (In ``occupations such as craftsmen .
. . workers realize a 14% increase in wages after five years of
occupation specific experience . . . sales workers . . . realize
large wage gains as they accumulate general work experience.'').
Available at: <a href="https://www.sciencedirect.com/science/article/abs/pii/S0927537109001286?via%3Dihub/">https://www.sciencedirect.com/science/article/abs/pii/S0927537109001286?via%3Dihub/</a>.
\124\ Id.; Levenson, Alec & Zoghi, Cindy, The Strength of
Occupation Indicators as a Proxy for Skill (Mar. 2007), 2, 8. BLS
(``[T]here is considerable within occupation variation in skills . .
. , there are differences among workers in their ability to perform
tasks of high complexity, and there are differences among jobs in
the level of task complexity and responsibility bestowed on the
worker.''). Available at: <a href="https://www.bls.gov/osmr/research-papers/2007/pdf/ec070030.pdf">https://www.bls.gov/osmr/research-papers/2007/pdf/ec070030.pdf</a>.
\125\ Id.
\126\ See, e.g., Torpey (2015)(Stating ``[j]obs for a specific
occupation often have similar position descriptions, but individual
tasks may vary'' and ``jobs involving more complex tasks or greater
responsibility may have higher wages than those that don't . . .'');
Autor, David H. and Handel, Michael J. (2013), Putting Tasks to the
Test: Human Capital, Job Tasks and Wages, National Bureau of
Economic Research (``Job tasks . . . vary substantially within and
between occupations, are significantly related to workers'
characteristics, and are robustly predictive of wage differentials
both between occupations and among workers in the same
occupation.''). Available at: <a href="https://ideas.repec.org/a/ucp/jlabec/doi10.1086-669332.html">https://ideas.repec.org/a/ucp/jlabec/doi10.1086-669332.html</a>.
\127\ National Compensation Survey (May 2013), 60. BLS (Stating
job levels for blue collar jobs may increase progressively based on
factors like required knowledge of ``rules, materials, processes,
procedures, operations, and tools necessary'' to perform tasks like
``fabricat[ing], install[ing], repair[ing], maintain[ing] . . .''
equipment and should be increased most significantly when the job
requires, for example, knowledge of complex procedures and methods
``gained through job experience to permit independent performance of
nonstandard assignments . . .'' or requires ``specialized training
or experience . . .''). Available at: <a href="https://www.bls.gov/mwe/factsheets/ncs-leveling-guide-for-evaluating-your-firms-jobs-and-pay.pdf">https://www.bls.gov/mwe/factsheets/ncs-leveling-guide-for-evaluating-your-firms-jobs-and-pay.pdf</a>.
---------------------------------------------------------------------------
Within the agriculture sector, the amount of time spent working on
a farm and the number of years of experience performing agricultural
work have a positive correlation to the average wages or earnings
received.\128\ Based on a review of the evidence available, the
Department concludes that wage differentials within a given
agricultural occupation do exist, and that varying degrees of work-
related experience among employed U.S. agricultural workers are
reflected by differences in wages paid to such workers by employers.
For example, the most recent data available from the NAWS for 2021-2022
indicates that ``[h]ourly wages increased with respondents' [crop
workers] number of years working for their current employer.'' The
report noted that workers ``who had been with their current employer 1
to 2 years earned an average of $13.72 per hour, those working for
their current employer 3 to 5 years earned an average of $14.53 per
hour, and those with 6 to 10 years earned an average of $14.81 per hour
. . .'' and workers ``who had worked for their current employer 11
years or more earned the highest hourly wage, an average of $15.56 per
hour.'' \129\ Additionally, the report indicates that 23 percent of
workers had worked at least 11 or more years with their current
employer and the average number of years worked with the current
employer was 8 years.\130\
---------------------------------------------------------------------------
\128\ Findings from the National Agricultural Workers Survey
(NAWS) 2021-2022: A Demographic Employment Profile of United States
Crop Workers (Sept. 2023), at 28. U.S. DOL ETA. Available at:
<a href="https://www.dol.gov/sites/dolgov/files/ETA/naws/pdfs/NAWS%20Research%20Report%2017.pdf">https://www.dol.gov/sites/dolgov/files/ETA/naws/pdfs/NAWS%20Research%20Report%2017.pdf</a>.
\129\ Id. at 28.
\130\ Id. at 32.
---------------------------------------------------------------------------
This suggests that relying on unsegmented aggregate OEWS data
(i.e., the arithmetic mean of all hired workers in a given occupational
wage distribution) would tend to overstate wages for similarly employed
American agricultural workers with less experience and understate wages
for similarly employed American agricultural workers with more
experience. Within the OEWS data set that covers a far larger sample
size of employer establishments than both the NAWS and FLS discussed
previously, BLS publishes an occupational profile containing the
average wage paid to all workers in the SOC code and shows a
distribution of wages in percentiles, which provides information on the
spread of wages based on the percentage of workers earning at or below
a given percentile. The wages presented at different points within an
occupational wage distribution positively correlate to important worker
characteristics such as education and experience. As the BLS describes,
``someone new to the field may expect wages near the 10th or 25th
[[Page 47935]]
percentile, whereas those with more experience and education could
expect wages near the 75th or 90th percentile.'' \131\ To further
illustrate the point that material wage differentials exist within
agricultural occupations, the table below displays the national average
OEWS-based hourly wage rates associated with the top 10 SOC codes
typically certified in the H-2A program at the 10th, 25th, 50th, and
75th percentiles in the occupational wage distribution.
---------------------------------------------------------------------------
\131\ See How Much Could I Be Earning? Using Occupational
Employment and Wage Statistics Data During Salary Negotiations, BLS,
<a href="https://www.bls.gov/oes/earnings.pdf">https://www.bls.gov/oes/earnings.pdf</a>.
----------------------------------------------------------------------------------------------------------------
National average hourly wage distribution, May 2024
---------------------------------------------------------------
Occupation title (SOC code) 10th 25th 50th 75th
Percentile Percentile Percentile Percentile
----------------------------------------------------------------------------------------------------------------
Farmworkers and Laborers, Crop, Nursery, and $15.51 $16.48 $17.16 $18.73
Greenhouse (45-2092)...........................
Agricultural Equipment Operators (45-2091)...... 15.02 17.62 20.47 23.41
Farmworkers, Ranch, and Aquacultural Animals (45- 13.03 15.01 17.38 21.29
2093)..........................................
Heavy Truck and Tractor-Trailer Drivers (53- 18.58 22.71 27.62 31.50
3032)..........................................
Construction Laborers (47-2061)................. 16.44 18.32 22.47 28.32
Shuttle Drivers and Chauffeurs (53-3053)........ 13.21 15.13 17.63 21.40
Graders and Sorters, Agricultural Products (45- 14.66 16.13 17.03 18.28
2041)..........................................
Helpers--Carpenters (47-3012)................... 15.16 17.24 20.00 22.49
Helpers--Installation, Maintenance and Repair 13.83 16.23 18.68 22.40
Workers (49-9098)..............................
Packers and Packagers, Hand (53-7064)........... 13.01 15.13 17.10 19.69
----------------------------------------------------------------------------------------------------------------
Upon review, the data in the table clearly demonstrates that
material wage differentials are present in both common higher-skilled
agricultural SOC codes, such as heavy truck and tractor-trailer drivers
and first-line supervisors of farm workers, and the relatively lower-
skilled occupations that make up the five most common field and
livestock workers (combined) category of occupations, which includes
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), and Graders and Sorters, Agricultural Products (45-2041).
For example, the wage estimates for heavy truck drivers (SOC 53-3032)
range from $22.71 per hour at the 25th percentile to $27.62 per hour at
the 50th percentile, or mean, of all workers in the occupational
distribution. The wage differential is significant at more than $4.91
per hour between these two wage measurement points in the occupational
wage distribution. In the field and livestock worker (combined)
category of occupations, the wage data at these same percentiles
indicates more narrow wage differentials for crop farmworker occupation
(45-2092) ranging from $16.48 to $17.16 per hour, with a differential
of $0.68 per hour; wages for agricultural equipment operators (45-2091)
ranging from $17.62 to $20.47, with a differential of $2.85 per hour;
and wages for ranch and aquacultural farmworkers (45-2093) ranging from
$15.01 to $17.38 per hour, with a differential of $2.37 per hour.
The Department also notes that evidence exists that wage
differentials are present at a statewide geographic level and even for
the most common occupation certified in the H-2A program, Farmworkers
and Laborers, Crop, Nursery, and Greenhouse (45-2092). As an example,
the table below displays the statewide average OEWS-based hourly wage
rates associated with SOC code 45-2092 for the top 10 states of
certified employment in the H-2A program at the 10th, 25th, 50th, and
75th percentiles in the occupational wage distribution.
----------------------------------------------------------------------------------------------------------------
Statewide average hourly wage distribution farmworkers and
laborers, crop, nursery, and greenhouse (45-2092)
U.S. State of certified employment ---------------------------------------------------------------
10th 25th 50th 75th
Percentile Percentile Percentile Percentile
----------------------------------------------------------------------------------------------------------------
Florida......................................... $12.64 $13.36 $14.32 $16.19
Georgia......................................... 12.00 13.37 13.94 17.96
California...................................... 16.34 16.72 17.20 18.63
Washington...................................... 16.44 16.67 17.83 21.00
North Carolina.................................. 13.28 14.44 16.20 17.31
Michigan........................................ 13.94 15.58 17.52 18.80
Louisiana....................................... 10.96 12.86 14.50 16.06
Texas........................................... 11.10 12.97 15.28 16.76
Arizona......................................... 14.84 16.21 16.43 17.45
New York........................................ 15.78 17.20 18.93 21.98
----------------------------------------------------------------------------------------------------------------
Upon review, the data in the table above also shows that wage
differentials are present in the most common agricultural occupation
certified under the H-2A program. Across the top 10 states of intended
employment for H-2A workers, the average wage differential between the
25th and 50th percentiles for the Farmworkers and Laborers, Crop,
Nursery, and Greenhouse occupation is approximately $1.28 per hour.
These wage differentials are more salient in most, but not all, of the
top 10 states. For example, the wage estimates for this occupation in
Texas range from $12.97 per hour at the 25th percentile to $15.28 per
hour at the 50th percentile, or mean, of all workers in the
occupational distribution. The wage differential is significant at more
than $2.31 per hour between these two wage measurement
[[Page 47936]]
points in the occupational wage distribution. In addition, a wage
differential of more than $1.00 per hour is also present for workers
performing similar agricultural work within the states of Washington,
North Carolina, Michigan, Louisiana, and New York. However, Arizona
shows a narrower wage differential of $0.22 per hour where wage
estimates showed $16.21 per hour at the 25th percentile and $16.43 per
hour at the 50th percentile or mean.
Thus, based on the broad distribution of wages paid to U.S. workers
similarly employed across the most common occupations and geographic
areas certified under the H-2A program, the Department can reasonably
conclude that material wage differences within agricultural occupations
exist and are positively correlated with differences in the
characteristics and qualifications of incumbent workers employed by
employers in these occupations. Accordingly, continued use of a single
average hourly wage for all workers for a given occupation is not
appropriate when the employer's need for the agricultural labor or
services to be performed does not require qualifications commensurate
with the average of all incumbent workers employed who may possess
eight or more years of experience. In other words, imposing a single
AEWR computed based on all workers paid within the occupation,
regardless of the qualifications contained in an employer's job offer,
is not sufficiently precise to reflect market-based wages paid to U.S.
workers similarly employed, resulting in a wage floor that is either
artificially too high or too low in relation to the nature of the
employer's qualifications. As previously discussed, due to its sampling
size and methodology that allows for collecting employment and gross
wages paid to each worker in each occupation during the reference
period, the OEWS can consistently report more precise wage estimates
for any occupation-specific wage distribution to approximate wage
differentials paid to U.S. workers similarly employed in a particular
occupation and state, which the FLS cannot report at any level.
When AEWRs are artificially set too far above market conditions in
relation to the agricultural duties and qualifications required by
employers, the resulting increases in production costs can harm U.S.
workers similarly employed as employers scale down or, worse yet, shut
down operations and become ``priced out'' of participating in the H-2A
program. Conversely, when the AEWRs are set artificially below market
conditions in relation to the minimum job qualifications required by
employers, U.S. workers similarly employed may be harmed by employers
choosing not to hire qualified and eligible U.S. workers in favor of H-
2A workers, which may lead to requiring that U.S. workers accept below-
market wages as a condition of employment.
The Department notes that the policy rationale for adopting two
skill levels is to approximate, as accurately as possible and using the
best available information, the average of wages paid to U.S. workers
similarly employed in the occupation and geographic area based on the
qualifications contained in the employer's job offer for which the
services of H-2A workers are being requested for temporary agricultural
labor certification. When the average wages better reflect these market
conditions, they do not represent below-average AEWRs. Rather, these
AEWRs reflect the actual average wages that are prevailing in the
occupation and geographic area for that particular kind of job. The
Department's use of a single AEWR for work performed within a
particular occupation or category of occupations, regardless of
qualifications, fails to account for the fact that individual jobs
within a broad occupational classification require relatively more or
less experience and skill to perform than others and may adversely
affect U.S. workers who are similarly employed performing such jobs.
The Department also concludes that adoption of this AEWR
methodology will address concerns raised in the recently settled Teche
Vermilion litigation regarding the 2023 AEWR Final Rule's methodology
under 8 U.S.C. 1188(a)(1)(B) and the lack of clarity or nuance
regarding the way the Department determines whether a ``H-2A job . . .
ha[s] sufficient common characteristics with a non-H-2A job'' such that
``the wages and working conditions of one job impact the wages and
working conditions of the other.'' \132\ As previously explained, the
Court noted the INA ``does not require that DOL base the AEWR on
average wage rates for jobs or occupations that are the same or
identical,'' but does require ``that the jobs be sufficiently
comparable that the wage rates and working conditions of the H-2A job
at issue can adversely impact the wage rates and working conditions of
domestic workers employed in the non-H-2A job,'' thereby assuring the
AEWR ``correlate[es] to whether the employment of an H-2A worker
adverse[ly] impacts similarly employed domestic workers.'' \133\
[…truncated; see source link]Indexed from Federal Register on October 2, 2025.
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.