[Federal Register Volume 88, Number 116 (Friday, June 16, 2023)]
[Notices]
[Pages 39482-39483]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-12896]


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DEPARTMENT OF LABOR

Employment and Training Administration


Labor Certification Process for the Temporary Employment of 
Foreign Workers in Agriculture in the United States: Adverse Effect 
Wage Rate Updates for Non-Range Occupations

AGENCY: Employment and Training Administration, Department of Labor.

ACTION: Notice.

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SUMMARY: The Employment and Training Administration of the Department 
of Labor (DOL) is issuing this notice to announce updates to the 
Adverse Effect Wage Rates (AEWR) for the employment of temporary or 
seasonal nonimmigrant foreign workers (H-2A workers) to perform 
agricultural labor or services other than the herding or production of 
livestock on the range. AEWRs are the minimum wage rates DOL has 
determined must be offered, advertised in recruitment, and paid by 
employers to H-2A workers and workers in corresponding employment so 
that the wages and working conditions of workers in the United States 
(U.S.) similarly employed will not be adversely affected. In this 
notice, DOL announces the AEWRs based on wage data reported by DOL's 
Bureau of Labor Statistics (BLS) Occupational Employment and Wage 
Statistics (OEWS) survey. The AEWRs established in this notice are 
applicable to H-2A job opportunities classified: in Standard 
Occupational Classification (SOC) codes other than the six SOC codes 
comprising the field and livestock workers (combined) group, and in the 
field and livestock workers (combined) occupational group that are 
located in States or regions, or equivalent districts or territories, 
for which the United States Department of Agriculture's Farm Labor 
Report (better known as the Farm Labor Survey, or FLS) does not report 
a wage.

DATES: These rates are effective July 1, 2023.

FOR FURTHER INFORMATION CONTACT: Brian Pasternak, Administrator, Office 
of Foreign Labor Certification, Employment and Training Administration, 
U.S. Department of Labor, 200 Constitution Avenue NW, Room N-5311, 
Washington, DC 20210, telephone: (202) 693-8200 (this is not a toll-
free number). Individuals with hearing or speech impairments may access 
the telephone numbers above via TTY/TDD by calling the toll-free 
Federal Information Relay Service at 1 (877) 889-5627.

SUPPLEMENTARY INFORMATION: The U.S. Citizenship and Immigration 
Services of the Department of Homeland Security will not approve an 
employer's petition for the admission of H-2A nonimmigrant temporary 
and seasonal agricultural workers in the U.S. unless the petitioner has 
received an H-2A labor certification from DOL. DOL issues such labor 
certification when it determines that: (1) there are not sufficient 
U.S. workers who are able, willing, and qualified and who will be 
available at the time and place needed to perform the labor or services 
involved in the petition; and (2) the employment of the foreign 
worker(s) in such labor or services will not adversely affect the wages 
and working conditions of workers in the U.S. similarly employed. See 8 
U.S.C. 1101(a)(15)(H)(ii)(a), 1184(c)(1), and 1188(a); 8 CFR 
214.2(h)(5); 20 CFR 655.100.
    DOL's H-2A regulations at 20 CFR 655.122(l) provide that employers 
must pay their H-2A workers in non-range occupations \1\ and workers in 
corresponding employment at least the highest of: (i) the AEWR; (ii) a 
prevailing wage rate if the Office of Foreign Labor Certification 
(OFLC) Administrator has approved a prevailing wage survey for the 
applicable crop activity or agricultural activity and, if applicable, a 
distinct work task or tasks performed in that activity; (iii) the 
agreed-upon collective bargaining wage rate; (iv) the Federal minimum 
wage rate; or (v) the State minimum wage rate, whichever is highest, 
for every hour or portion thereof worked during

[[Page 39483]]

a pay period. Further, when the AEWR is updated during a work contract, 
the employer must pay at least that updated AEWR upon the effective 
date of the new rate, if the updated AEWR is higher than the highest of 
the previous AEWR, a prevailing rate for the crop activity or 
agricultural activity and, if applicable, a distinct work task or tasks 
performed in that activity and geographic area, the agreed-upon 
collective bargaining wage, the Federal minimum wage rate, or the State 
minimum wage rate. See 20 CFR 655.120(b)(3). Similarly, when the AEWR 
is updated during a work contract and is lower than the wage rate that 
is guaranteed on the job order, the employer must continue to pay at 
least the wage rate guaranteed on the job order. See 20 CFR 
655.120(b)(4).
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    \1\ Range occupations (i.e., herding and production of livestock 
on the range) are subject to 20 CFR 655.200 through 655.235, which 
include a wage obligation provision at 20 CFR 655.210(g) and a 
minimum monthly AEWR at 20 CFR 655.211.
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    On February 28, 2023, DOL published a final rule, Adverse Effect 
Wage Rate Methodology for the Temporary Employment of H-2A 
Nonimmigrants in Non-Range Occupations in the United States, 88 FR 
12760 (Feb. 28, 2023), to establish a new methodology for setting 
hourly AEWRs, effective March 30, 2023. Pursuant to this new rule, 
while most AEWRs will continue to be based, as they have been since 
1987, on the United States Department of Agriculture's (USDA) Farm 
Labor Survey (FLS), these new OEWS-based AEWRs will apply to H-2A job 
opportunities classified: (1) in SOC codes other than the six SOC codes 
comprising the field and livestock workers (combined) group, and (2) in 
the field and livestock workers (combined) occupational group that are 
located in States or regions, or equivalent districts or territories, 
for which the United States Department of Agriculture's Farm Labor 
Report (better known as the FLS) does not report a wage.
    The new final rule requires the OFLC Administrator to publish a 
Federal Register notice at least once in each calendar year to 
establish each AEWR. See 20 CFR 655.120(b)(2). The OFLC Administrator 
provides this notice by publishing two separate announcements in the 
Federal Register, one to update the AEWRs based on the wage data 
reported by the USDA's FLS, effective on or about January 1, and a 
second to update the AEWRs based on data reported by the BLS OEWS 
survey, effective on or about July 1. See 88 FR at 12775.

OEWS-Based AEWR Updates

    In accordance with 20 CFR 655.120(b)(1)(ii), AEWRs for agricultural 
employment not represented by the six SOC codes comprising the field 
and livestock worker (combined) group \2\ for which temporary H-2A 
certification is being sought is determined using the statewide annual 
average hourly gross wage for the SOC code for the State, or equivalent 
district or territory, as reported by the OEWS survey. In the event the 
OEWS survey does not report an average hourly gross wage for the SOC 
code for the State, or equivalent district or territory, the AEWR is 
determined using the national average hourly gross wage for the SOC as 
reported by the OEWS survey.
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    \2\ The FLS survey's field and livestock workers (combined) 
category reports aggregate wage data for the following six SOC 
titles and codes: Farmworkers and Laborers, Crop, Nursery and 
Greenhouse Workers (45-2092); Farmworkers, Farm, Ranch, and 
Aquacultural Animals (45-2093); Agricultural Equipment Operators 
(45-2091); Packers and Packagers, Hand (53-7064); Graders and 
Sorters, Agricultural Products (45-2041); and All Other Agricultural 
Workers (45-2099).
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    Using the most recently published OEWS survey,\3\ the OFLC 
Administrator is publishing the statewide hourly AEWRs applicable to H-
2A job opportunities classified using an SOC code not included in the 
field and livestock workers (combined) group.\4\ The hourly AEWRs 
determined under 20 CFR 655.120(b)(1)(ii) are available for each SOC 
code and geographic area at the following URL: https://flag.dol.gov/ gov/. 
At the URL, DOL provides a searchable spreadsheet and other resources 
that enable interested parties to search by State and SOC code for the 
OEWS-based AEWR applicable to an H-2A job opportunity.
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    \3\ See Bureau of Labor Statistics, Occupational Employment and 
Employment and Wage Statistics (OEWS) Report, OEWS Databases (Apr. 
25, 2023), available at https://www.bls.gov/oes/data.htm. Note that 
the 2023 OEWS report is based on data from May 2022 OEWS estimates.
    \4\ See 20 CFR 655.120(b)(1)(iii) (``For purposes of paragraphs 
(b)(1)(i) and (ii) of this section, the term State and statewide 
include the 50 States, the District of Columbia, Guam, Puerto Rico, 
and the U.S. Virgin Islands.'')
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    In addition, where the FLS survey does not report an annual average 
gross wage for the field and livestock workers (combined) group in a 
State or region, or equivalent district or territory, the AEWRs 
applicable to the field and livestock workers (combined) group is 
established using the statewide annual average hourly gross wage for 
the field and livestock workers (combined) group in the State, or 
equivalent district or territory, as reported by the OEWS survey. See 
20 CFR 655.120(b)(1)(i)(B). In the event the OEWS survey does not 
report a statewide average hourly gross wage for the field and 
livestock workers (combined) group for the State, or equivalent 
district or territory, the AEWR is determined using the national 
average hourly gross wage for field and livestock workers (combined) 
group as reported by the OEWS survey. See 20 CFR 655.120(b)(1)(i)(C).
    Using the most recently published OEWS survey, the OFLC 
Administrator is publishing the hourly AEWRs applicable to H-2A job 
opportunities classified in the field and livestock workers (combined) 
group, in States or regions, or equivalent districts or territories, 
where an annual average hourly gross wage is not reported by the FLS. 
These hourly AEWRs are available at https://flag.dol.gov/ and in the 
table below:

    Table--Adverse Effect Wage Rates for Field and Livestock Workers
                               (Combined)
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                State/District/Territory                       AEWRs
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Alaska..................................................          $18.02
District of Columbia....................................           20.72
Guam....................................................           10.12
Puerto Rico.............................................            9.70
U.S. Virgin Islands.....................................           13.95
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    Authority: 20 CFR 655.120(b)(2); 20 CFR 655.103(b).

Brent Parton,
Acting Assistant Secretary for Employment and Training, Labor.
[FR Doc. 2023-12896 Filed 6-15-23; 8:45 am]
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