Adverse Effect Wage Rate Methodology for the Temporary Employment of H-2A Nonimmigrants in Non-Range Occupations in the United States

Federal RegisterOct 2, 2025

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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.

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: https://www.regulations.gov.

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

https://www.regulations.gov,

including any personal information provided. The

https://www.regulations.gov

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:

OFLC.Regulations@dol.gov.

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

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

52 FR 20496 (Jun. 1, 1987) (1987 H-2A IFR);

AFL-CIO

Brock,

835 F.2d 912, 915 (D.C. Cir. 1987).

Id.

at 28039.

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.”

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.

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.

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).

84 FR at 36180.

Id.

74 FR 45906 (Sep. 4, 2009).

88 FR at 12793-12794.

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;

tying the AEWR to an index like the Consumer Price Index or Employment Cost Index;

using various methods of setting AEWRs based on a uniform minimum wage untethered to labor market data, such as an enhanced federal minimum wage;

eliminating AEWRs and instead using only prevailing wages based on specific crop activities;

setting a cap or ceiling on the AEWR employers must pay;

and using the highest AEWR among those reported by the FLS and OEWS at the local, state, and national levels,

among other suggested alternative methods.

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.).

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.”).

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.”).

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).

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 . . .”).

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.

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.

See

84 FR at 36171 (Jul. 26, 2019).

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,

on October 28, 2020, in

United Farm Workers, et al.

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.

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.

United Farm Workers, et al.

U.S. Dep't. of Labor, et al.,

598 F.Supp.3d 878, 888 (E.D. Cal. Apr. 1, 2022);

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.”

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.

And, as the D.C. Circuit noted, economic harm may be a basis on which the good cause exception may be invoked.

Jifry

FAA,

370 F.3d 1174, 1179 (D.C. Cir. 2004);

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),

https://www.dhs.gov/news/2025/06/09/dhs-announces-it-will-forgive-failure-depart-fines-illegal-aliens-who-self-deport

[

https://perma.cc/8RBN-PACA

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.

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.

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.”

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.

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.

This represents an increase of approximately 7.17 times over this period.

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

https://www.cbp.gov/newsroom/national-media-release/most-secure-border-history-cbp-reports-major-enforcement-wins-june

(last visited August 20, 2025).

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

https://www.cbp.gov/newsroom/national-media-release/another-record-setting-month-cbp-border-continues-be-most-secure

(last visited September 18, 2025).

See CPB,

(last visited September 20, 2025).

Id.

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),

https://www.newsweek.com/ice-data-immigrants-self-deportation-trump-administration-2124106.

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.

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.

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.

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.

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),

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

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.

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:

https://www.dol.gov/sites/dolgov/files/ETA/naws/pdfs/NAWSResearchReport17.pdf.

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

agricultural workers.

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.

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 José Iván Rodríguez-Sánchez of Rice University's Baker Institute for Public Policy at Social and Economic Effects of Expanded Deportation Measures | Baker Institute.

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.

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.

See Kelly Lester,

Harvest on Hold,

John Locke Society, April 28, 2025, at pp. 5; 23-28 (

https://www.johnlocke.org/wp-content/uploads/2025/05/Agriculture-Crisis-Web.pdf

);

see also,

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.

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.

Zachariah Rutledge and Pierre Mérel, “Farm Labor Supply and Fruit and Vegetable Production,” American Journal of Agricultural Economics 105, no. 2 (August 15, 2022): 644-73,

https://doi.org/10.1111/ajae.12332.

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

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.

Farm Sector Income & Finances: Farm Sector Income Forecast

(Feb. 2025). U.S. Department of Agriculture, Economic Research Service.

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.

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:

https://www.ers.usda.gov/data-products/charts-of-note/chart-detail?chartId=110172.

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,

https://www.ers.usda.gov/topics/farm-economy/farm-labor/.

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.

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.

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).

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:

https://s.giannini.ucop.edu/uploads/pub/2024/10/29/v28n1_3.pdf.

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

and overall grim financial outlook.

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.

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.

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.

Average Hourly Earnings of All Employees, Total Private

(Jun. 2025). Federal Reserve Bank of St. Louis. Available at:

https://fred.stlouisfed.org/series/CEU0500000003.

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.

In a sector where profits margins are already thin, such increases place agricultural employers at a competitive

disadvantage, particularly when compared to growers in Mexico paying approximately $1 to $2 per hour.

See

May 2025 Farm Labor Report, National Agricultural Statistics Service (NASS), Agricultural Statistics Board, United States Department of Agriculture, (May 21, 2025).

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

https://www.congress.gov/crs-product/R48278

?. 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.

Additional upward pressure on labor costs—whether due to continued AEWR escalation or other regulatory requirements

—threatens the viability of farming operations, especially as substantial numbers of illegal aliens are removed or voluntarily depart from the U.S. labor force.

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).

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

https://www.choicesmagazine.org/choices-magazine/submitted-articles/whither-the-h-2a-visa-program-expansion-and-concentration

(last visited September 14, 2025).

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:

https://www.congress.gov/bill/118th-congress/senate-bill/874/text;

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:

https://huizenga.house.gov/uploadedfiles/jan._11_ltr_to_appropriators_re_h2a_wage_2024.pdf.

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:

https://huizenga.house.gov/uploadedfiles/final_h2a_wage_freeze_fy26.pdf.

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:

https://agriculture.house.gov/uploadedfiles/alwg_final_report_-_3.7.23.pdf.

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.)

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.

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.)

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.”

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.

54 FR at 28046.

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

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.

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.

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.

Motion For Entry of Final Judgment,

Teche Vermilion Sugar Cane Growers Ass'n Inc.

Su,

No. 6:23-cv-00831-RRS-CBW (W.D. La. Aug. 21, 2025), ECF No. 86.

Judgment,

Teche Vermilion Sugar Cane Growers Ass'n Inc.

Su,

No. 6:23-cv-00831-RRS-CBW (W.D. La. Aug. 21, 2025), ECF No. 87.

20 CFR 655.103 (2010); 20 CFR 655.120(c) (2010).

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.

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.

https://www.reginfo.gov/public/do/PRAOMBHistory?ombControlNumber=0535-0109#;

90 FR 42560 (Sep. 3, 2025).

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.

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

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.

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

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.

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

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

https://flag.dol.gov/wage-data/adverse-effect-wage-rates

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 § 655.120 (b)(1)(I) AND COMPENSATION ADJUSTMENT FOR H-2A WORKERS ONLY

State

Skill level I

(entry-level)

Skill level II

(experience-level)

H-2A adverse compensation adjustment

Alabama

$11.25

$14.95

−$1.20

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)

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

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.

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.

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.

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.

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.

Like the FLS, the survey is conducted primarily by mail, with telephone follow-ups to nonrespondents, or, if needed, to clarify written responses.

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.

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.

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.

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).

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,

https://doi.org/10.21916/mlr.2014.25.

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, https://www.dol.gov/sites/dolgov/files/general/budget/2024/CBJ-2024-V3-01.pdf.

Id.

See Occupational Employment and Wage Statistics Frequently Asked Questions,

BLS. Available at:

https://www.bls.gov/oes/oes_ques.htm

(last modified Aug. 13, 2021).

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.

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

have shortcomings.

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.”

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.

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.

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.”

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:

https://www.congress.gov/crs-product/R47944.

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

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) . . .”).

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

Id.

at 12770.

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.

101

84 FR at 36182 (

citation omitted

102

75 FR at 6895.

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

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.

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).

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

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:

https://www.ers.usda.gov/topics/farm-economy/farm-labor; 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:

https://www.dol.gov/agencies/eta/national-agricultural-workers-survey/naws-data-table/naws-data-finder-results;

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:

https://www.gao.gov/assets/gao-25-106389.pdf.

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:

https://www.dol.gov/sites/dolgov/files/ETA/naws/pdfs/NAWS%20Research%20Report%2017.pdf.

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:

https://www.gao.gov/assets/gao-25-106389.pdf;

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:

https://ers.usda.gov/sites/default/files/_laserfiche/publications/102015/EIB-226.pdf?v=97406.

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

https://www.dol.gov/agencies/eta/foreign-labor/performance.

114

See e.g.,

90 FR at 42561.

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

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.

115

See e.g.,

75 FR at 6899.

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.

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

https://www.onetonline.org

(last visited August 21, 2025).

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

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

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

https://www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/NPWHC_Guidance_Revised_11_2009.pdf.

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.

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.

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

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:

https://www.bls.gov/opub/mlr/2022/article/introducing-modeled-wage-estimates-by-grouped-work-levels.htm; 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:

https://www.bls.gov/oes/earnings.pdf; 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:

https://www.bls.gov/mwe/factsheets/grouped-work-levels-fac

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