SUPPLEMENTARY INFORMATION:

The U.S. Citizenship and Immigration Services of the Department of Homeland Security will not approve an employer's petition for the admission of H-2A nonimmigrant temporary and seasonal agricultural workers in the U.S. unless the petitioner has received an H-2A labor certification from DOL. DOL issues such labor certification when it ( printed page 101629) determines that: (1) there are not sufficient U.S. workers who are able, willing, and qualified and who will be available at the time and place needed to perform the labor or services involved in the petition; and (2) the employment of the foreign worker(s) in such labor or services will not adversely affect the wages and working conditions of workers in the U.S. similarly employed. See8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184(c)(1), and 1188(a); 8 CFR 214.2(h)(5); 20 CFR 655.100.

FLS-Based AEWR Updates

DOL's H-2A regulations at 20 CFR 655.122(l) provide that employers must pay their H-2A workers and workers in corresponding employment at least the highest of the various wage sources listed in § 655.120(a), including the AEWR. Further, when the AEWR is updated during a work contract, the employer must pay at least that updated AEWR upon the effective date of the new AEWR, if the updated AEWR is higher than the highest of the previous AEWR, a prevailing wage rate for the crop activity or agricultural activity and, if applicable, a distinct work task or tasks performed in that activity and geographic area, the agreed-upon collective bargaining wage, the Federal minimum wage rate, or the State minimum wage rate. See20 CFR 655.120(b)(3). Similarly, when the AEWR is updated during a work contract and is lower than the wage rate that is guaranteed on the job order, the employer must continue to pay at least the wage rate guaranteed on the job order. See20 CFR 655.120(b)(4).

Pursuant to the final rule, Adverse Effect Wage Rate Methodology for the Temporary Employment of H-2A Nonimmigrants in Non-Range Occupations in the United States,88 FR 12760 (Feb. 28, 2023), most AEWRs will continue to be based, as they have been since 1987, on the USDA FLS. AEWRs based on DOL's Bureau of Labor Statistics (BLS) Occupational Employment and Wage Statistics (OEWS) survey will apply to H-2A job opportunities classified: (1) in SOC codes other than the six SOC codes comprising the field and livestock workers (combined) category, and (2) in the field and livestock workers (combined) occupational category that are located in States or regions, or equivalent districts or territories, for which the USDA FLS does not report a wage.^[1]

The final rule, noted above, requires the OFLC Administrator to publish a Federal Register Notice at least once in each calendar year to establish each set of AEWRs. See20 CFR 655.120(b)(2). The OFLC Administrator provides this notice by publishing two separate announcements in the Federal Register , one to update the non-range AEWRs based on the wage data reported by the USDA's FLS and a second to update the non-range AEWRs based on data reported by the BLS OEWS survey. See 88 FR at 12775.

The updated AEWRs for all non-range agricultural employment classified in the field and livestock workers (combined) category, for which temporary H-2A certification is being sought, is equal to the annual weighted average hourly wage rate for field and livestock workers (combined) in the State or region as published by the USDA in the November 20, 2024, FLS. DOL's regulation, 20 CFR 655.120(b)(2), requires that the OFLC Administrator publish the USDA field and livestock worker (combined) wage data as AEWRs in a Federal Register Notice. Accordingly, the updated AEWRs to be paid for agricultural work performed by H-2A and workers in corresponding employment on and after the effective date of this notice are set forth in the table below:

The AEWRs set forth in the table above are the AEWRs applicable to the following SOC titles and codes: Farmworkers and Laborers, Crop, Nursery, and Greenhouse (45-2092); Farmworkers, Farm, Ranch, and Aquacultural Animals (45-2093); Agricultural Equipment Operators (45-2091); Packers and Packagers, Hand (53-7064); Graders and Sorters, Agricultural Products (45-2041); and All Other Agricultural Workers (45-2099). These AEWRs are published by the OFLC Administrator in accordance with 20 CFR 655.120(b)(2). Accordingly, the simple average of these AEWRs constitutes the average AEWR. See20 CFR 655.103(b) (definition of average AEWR). The simple average is calculated by finding the sum of the AEWRs listed in the table above, then dividing by the total number of AEWRs, which is currently 49 ($869.20/49 = $17.74). On and after the effective date of this notice, the average AEWR to be used to calculate the bond amounts required under 20 CFR 655.132(c)(2)(ii) is $17.74.

Delayed Effective Date With Respect to Certain States and Entities

On April 29, 2024, DOL published the final rule, Improving Protections for Workers in Temporary Agricultural Employment in the United States,89 FR 33898 (Apr. 29, 2024) (“Farmworker Protection Rule”). The Farmworker Protection Rule amended the regulation at 20 CFR 655.120(b)(2) to state that ( printed page 101630) “[t]he updated AEWR will be effective as of the date of publication of the notice in the Federal Register .” On August 26, 2024, the United States District Court for the Southern District of Georgia issued a preliminary injunction in the case Kansas, et al. v. U.S. Department of Labor, No. 2:24-cv-00076-LGW-BWC (S.D. Ga., Aug. 26, 2024) (“ Kansas ”), prohibiting DOL from enforcing the Farmworker Protection Rule in certain states and with respect to certain entities. The preliminary injunction specifically prohibits DOL from enforcing the Farmworker Protection Rule in the states of Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Louisiana, Missouri, Montana, Nebraska, North Dakota, Oklahoma, South Carolina, Tennessee, Texas, and Virginia, and against Miles Berry Farm and members of the Georgia Fruit and Vegetable Growers Association as of August 26, 2024.^[2]

Therefore, for work performed at places of employment located in Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Louisiana, Missouri, Montana, Nebraska, North Dakota, Oklahoma, South Carolina, Tennessee, Texas, and Virginia, as well as for work performed by Miles Berry Farm and members of the Georgia Fruit and Vegetable Growers Association as of August 26, 2024, the effective date of this Federal Register Notice is December 30, 2024. As an example, for work performed at places of employment located in Missouri, a state subject to the Kansa s Order, this Federal Register Notice would be effective on December 30, 2024, but for work performed at places of employment located in Illinois, a state not subject to the Kansas Order, this Federal Register Notice would be effective December 16, 2024.

Authority:20 CFR 655.120(b)(2); 20 CFR 655.103(b).

89 FR 101628