[Federal Register Volume 89, Number 121 (Monday, June 24, 2024)]
[Notices]
[Pages 52512-52513]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-13809]


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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 applicable July 8, 2024.

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). For persons with a hearing or speech disability who need 
assistance to use the telephone system, please dial 711 to access 
telecommunications relay services.

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 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

[[Page 52513]]

highest of various wage sources listed in Sec.  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 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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    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 
United States Department of Agriculture's (USDA) Farm Labor Survey 
(FLS). The OEWS-based AEWRs 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, or (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.\2\
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    \2\ In the event an employer's job opportunity requires the 
performance of agricultural labor or services that are not 
encompassed in a single SOC code's description and tasks, the 
applicable AEWR will be the highest AEWR for all applicable SOCs. 
See 20 CFR 655.120(b)(5).
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    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. 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 \3\ 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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    \3\ 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,\4\ 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.\5\ 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/wage-data/adverse-effect-wage-rates. 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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    \4\ See Bureau of Labor Statistics, Occupational Employment and 
Employment and Wage Statistics (OEWS) Report, OEWS Databases (Apr. 
3, 2024), available at https://www.bls.gov/oes/data.htm. Note that 
the 2024 OEWS report is based on data from May 2023 OEWS estimates.
    \5\ 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/wage-data/adverse-effect-wage-rates 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........................................................    $19.52
District of Columbia..........................................     22.23
Guam..........................................................     10.34
Puerto Rico...................................................      9.94
U.S. Virgin Islands...........................................     13.96
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    Authority: 20 CFR 655.120(b)(2); 20 CFR 655.103(b).

Manoach Lamarre,
Deputy Assistant Secretary for Employment and Training, Labor.
[FR Doc. 2024-13809 Filed 6-21-24; 8:45 am]
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