[Federal Register Volume 90, Number 189 (Thursday, October 2, 2025)]
[Rules and Regulations]
[Pages 47914-47963]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2025-19365]
[[Page 47913]]
Vol. 90
Thursday,
No. 189
October 2, 2025
Part II
Department of Labor
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Employment and Training Administration
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20 CFR Part 655
Adverse Effect Wage Rate Methodology for the Temporary Employment of H-
2A Nonimmigrants in Non-Range Occupations in the United States; Final
Rule
Federal Register / Vol. 90 , No. 189 / Thursday, October 2, 2025 /
Rules and Regulations
[[Page 47914]]
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DEPARTMENT OF LABOR
Employment and Training Administration
20 CFR Part 655
[DOL Docket No. ETA-2025-0008]
RIN 1205-AC24
Adverse Effect Wage Rate Methodology for the Temporary Employment
of H-2A Nonimmigrants in Non-Range Occupations in the United States
AGENCY: Employment and Training Administration, Department of Labor.
ACTION: Interim final rule, request for comments.
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SUMMARY: The Department of Labor (Department or DOL) is issuing this
interim final rule (IFR) to amend its regulations governing the
certification of agricultural labor or services to be performed by
temporary foreign workers in H-2A nonimmigrant status (H-2A workers).
Specifically, the Department is revising the methodology for
determining the hourly Adverse Effect Wage Rates (AEWRs) for non-range
occupations by using wage data reported for each U.S. state and
territory by the Department's Bureau of Labor Statistics (BLS)
Occupational Employment and Wage Statistics (OEWS) survey. For the vast
majority of H-2A job opportunities, the Department will use OEWS survey
data to establish AEWRs applicable to five Standard Occupational
Classification (SOC) codes combining the most common field and
livestock worker occupations previously measured by the U.S. Department
of Agriculture's (USDA) Farm Labor Survey (FLS), which covered six SOC
codes. These AEWRs will be divided into two skill-based categories to
account for wage differentials arising from qualifications contained in
the employer's job offer. For all other occupations, the Department
will use the OEWS survey to determine two skill-based AEWRs for each
SOC code to reflect wage differentials. The threshold determination for
assigning the SOC code(s) and applicable skill-based AEWR will be based
on the duties performed for the majority of the workdays during the
contract period and qualifications contained in the employer's job
offer. Finally, to address differences in compensation between most
U.S. workers and H-2A workers who receive employer-provided housing at
no cost, the Department will implement a standard adjustment factor to
the AEWR to account for this non-monetary compensation that employers
will apply when compensating H-2A workers under temporary agricultural
labor certifications.
DATES: This rule is effective October 2, 2025. Interested persons are
invited to submit written comments on this rule on or before December
1, 2025.
ADDRESSES: You may submit comments electronically by the following
method:
Federal eRulemaking Portal: 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: [email protected].
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background
A. Legal Authority
B. The Role of AEWRs in the H-2A Program
C. Brief History of AEWR Methodologies
D. Recent Rulemaking and Litigation
II. Good Cause Justification and Need for This IFR
A. The Good Cause Exception Under the APA, and the Two Separate
and Independently Sufficient Bases for the Department's Invocation
of the Good Cause Exception
B. First, The Good Cause Exception Is Independently Supported
Due to the Current Widespread and Novel Economic Hardship Faced by
the Regulated Community
1. Background Regarding the Labor Market for Agricultural Work
2. Economic Forecasting Regarding Food Prices and Availability
3. The Flaws in the AEWR Wage Policy That Restrict Labor Supply
and Need for a New AEWR Methodology
C. Second, The Good Cause Exception Is Separately and
Independently Supported by the Discontinuation of the FLS by the
Department of Agriculture and the Court Ordered Vacatur of the 2023
AEWR Final Rule
III. Implementation of This IFR
IV. Discussion of Changes to the AEWR Methodology
A. The Department Will Use the OEWS To Determine Skill-Based
AEWRs for all Job Opportunities
B. The Department Will Determine the AEWRs at Two Skill Levels
To Better Reflect the Average Wages Paid to U.S. Workers Similarly
Employed
C. The Department Will Assess the Duties and Qualifications of
the Employer's Job Offer When Assigning the Most Applicable SOC
Code(s) and Establishing the AEWR
1. Consideration of Duties Performed for the Majority of the
Workdays During the Contract Period
2. Additional Guidance on Assigning SOC Codes Based on the
Duties and Qualifications in the Employer's Job Opportunity
D. The Department Will Determine a Single AEWR Covering the Five
Most Common Field and Livestock Worker (Combined) Occupations
E. The Department Will Determine a SOC-Specific AEWR for all
Other Occupations
F. The Department Will Establish a Standard AEWR Adjustment To
Account for Non-Wage Compensation Benefits Provided to H-2A Workers
G. The Department Will Publish OEWS-Based AEWRs To Coincide With
the BLS Publication Schedule
H. The Department Requests Comments on All Aspects of Its
Revised Methodology for Establishing the AEWRs
V. Severability
VI. Administrative Information
A. Executive Orders 12866 and 13563
1. Introduction
2. Summary of the Analysis
3. Need for Regulation
[[Page 47915]]
4. Analysis
a. Analysis Considerations
b. Subject by Subject Analysis
c. Regulatory Alternatives
B. Regulatory Flexibility Analysis
1. Why Action Is Being Considered
2. Objective of the IFR
3. Data Used To Estimate the Impact on Small Entities
4. Regulatory Costs and Cost Savings
a. Familiarization With Regulatory Change
b. Cost Savings
5. Method Used To Estimate the Impact on Small Entities
6. Estimated Impact of the IFR on Small Entities
C. Review Under the Paperwork Reduction Act
D. Review Under Executive Order 13132
E. Executive Order 13175 (Consultation and Coordination With
Indian Tribal Governments)
F. Review Under Executive Order 12988
G. Review Under the Unfunded Mandates Reform Act
H. Review Under Executive Order 12630
I. Review Under the Treasury and General Government
Appropriations Act, 1999
J. Review Under the Treasury and General Government
Appropriations Act, 2001
Table of Acronyms and Abbreviations
AEWR Adverse Effect Wage Rate
ALS Agricultural Labor Survey
BLS Bureau of Labor Statistics
CFR Code of Federal Regulations
CO Certifying Officer
CPS Current Population Survey
CY calendar year
DHS U.S. Department of Homeland Security
DOL U.S. Department of Labor
DWL deadweight loss
E.O. Executive Order
ECI Employment Cost Index
ETA Employment and Training Administration
FLR Farm Labor Report
FLS Farm Labor Survey
FR Final Rule
FY Fiscal Year
GVW Gross Vehicle Weight
H-2ALC H-2A Labor Contractor
IFR Interim Final Rule
INA Immigration and Nationality Act
IRCA Immigration Reform and Control Act of 1986
NAICS North American Industry Classification System
NASS National Agricultural Statistics Service
NPC National Processing Center
NPRM Notice of Proposed Rulemaking
O*NET Occupational Information Network
OES Occupational Employment Statistics
OEWS Occupational Employment and Wage Statistics
OFLC Office of Foreign Labor Certification
OIRA Office of Information and Regulatory Affairs
OMB Office of Management and Budget
Pub. L. Public Law
RFA Regulatory Flexibility Act of 1980
RIA Regulatory impact analysis
SBA Small Business Administration
SOC Standard Occupational Classification
Stat. U.S. Statutes at Large
SWA State Workforce Agency
U.S. United States
U.S.C. United States Code
USCIS U.S. Citizenship and Immigration Service
USDA U.S. Department of Agriculture
WHD Wage and Hour Division
I. Introduction
A. Legal Authority
The Immigration and Nationality Act (INA), as amended by the
Immigration Reform and Control Act of 1986 (IRCA), establishes an ``H-
2A'' nonimmigrant visa classification for a worker ``having a residence
in a foreign country which he has no intention of abandoning who is
coming temporarily to the United States to perform agricultural labor
or services . . . of a temporary or seasonal nature.'' 8 U.S.C.
1101(a)(15)(H)(ii)(a); see also 8 U.S.C. 1184(c)(1) and 1188.\1\ The
term ``[a]gricultural labor or services'' includes the types of labor
and services ``defined by the Secretary of Labor in regulations,'' as
well as the Internal Revenue Code definition of ``agricultural labor''
at ``section 3121(g) of title 26,'' the Fair Labor Standards Act
definition of ``agriculture'' at ``section 203(f) of title 29,'' and
``the pressing of apples for cider on a farm . . . .'' 8 U.S.C.
1101(a)(15)(H)(ii)(a).
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\1\ For ease of reference, sections of the INA are referred to
by their corresponding section in the United States Code.
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The admission of foreign workers under this classification involves
a multistep process before several Federal agencies. A prospective H-2A
employer must first apply to the Secretary of Labor (Secretary) for a
certification that:
(A) there are not sufficient workers who are able, willing, and
qualified, and who will be available at the time and place needed, to
perform the labor or services involved in the petition, and
(B) the employment of the alien in such labor or services will not
adversely affect the wages and working conditions of workers in the
United States similarly employed.
8 U.S.C. 1188(a)(1).
The INA prohibits the Secretary from issuing this certification--
known as a ``temporary labor certification''--unless both of the above
referenced conditions are met, and none of the conditions in 8 U.S.C.
1188(b) applies concerning strikes or lock-outs, labor certification
program debarments, workers' compensation assurances, and positive
recruitment.
The Secretary has delegated the authority to issue temporary
agricultural labor certifications to the Assistant Secretary for
Employment and Training, who in turn has delegated that authority to
ETA's Office of Foreign Labor Certification (OFLC).\2\ In addition, the
Secretary has delegated to the Department's Wage and Hour Division
(WHD) the responsibility under sec. 218(g)(2) of the INA, 8 U.S.C.
1188(g)(2), to assure employer compliance with the terms and conditions
of employment under the H-2A program.\3\ Since 1987, the Department has
operated the H-2A temporary agricultural labor certification program
under regulations promulgated pursuant to the INA. The standards and
procedures applicable to the certification and employment of workers
under the H-2A program are found at 20 CFR part 655, subpart B, and 29
CFR part 501.
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\2\ See Secretary's Order 06-2010 (Oct. 20, 2010), 75 FR 66268
(Oct. 27, 2010).
\3\ See Secretary's Order 01-2014 (Dec. 19, 2014), 79 FR 77527
(Dec. 24, 2014).
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When creating the H-2A visa classification, Congress charged the
Department with, among other things, regulating the employment of
nonimmigrant foreign workers in agriculture to guard against adverse
impact on the wages of agricultural workers in the United States
similarly employed. See 8 U.S.C. 1188(a)(1)(B). Congress, however, did
not ``define adverse effect and left it in the Department's discretion
how to ensure that the [employment] of farmworkers met the statutory
requirements'' while serving ``the interests of both farmworkers and
growers--which are often in tension.'' \4\ Thus, the Department has
discretion to determine the methodological approach that best allows it
to meet its statutory mandate.\5\
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\4\ AFL-CIO, et al. v. Dole, 923 F.2d 182, 184, 187 (D.C. Cir.
1991). See also Overdevest Nurseries v. Walsh, 2 F.4th 977, 984
(D.C. Cir. 2021) (finding reasonable the Department's definition of
``corresponding employment'' to prevent adverse effect on workers
similarly employed).
\5\ United Farmworkers v. Solis, 697 F. Supp. 2d 5, 8-11 (D.D.C.
2010).
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Since the Supreme Court's decision in Loper-Bright Enterprises, et
al. v. Raimondo, 603 U.S. 369 (2024), courts have consistently found
that the Department has discretion to determine the methods it uses to
carry out its mandate to prevent adverse effect. In Kansas, et al. v.
U.S. Department of Labor the district court noted the INA ``affords the
DOL considerable latitude to promulgate regulations that protect
American workers from being adversely affected by the issuance of H-2A
visas'' and that the Department's ``choice of [AEWR] methodology is
really a policy decision taken within the bounds of a rather broad
delegation.'' \6\ The court in
[[Page 47916]]
Teche Vermillion v. Sugar Cane Growers Ass'n Inc. v. Su similarly held
that the INA ``grants discretion to the DOL to implement a regulatory
regime to address'' adverse effect, does not ``define the term
`similarly employed,' '' and ``does not direct the DOL how to determine
whether the employment of an H-2A worker will `adversely affect' the
wages and working conditions of domestic workers'' similarly
employed.\7\ Thus in Teche the court found that the INA ``does not
dictate the methodology that the DOL must use to determine the AEWR or
otherwise limit the DOL to using a particular survey, such as the
FLS,'' and that ``[t]he only statutory constraints are the boundaries
set by section 1188(a)(1)(B).'' \8\ While reiterating the Department's
obligation to ``balance the competing goals of the statute--providing
an adequate labor supply and protecting the jobs of domestic workers,''
the ``choice of [AEWR] methodology . . .'' to achieve those twin aims
``is really a policy decision taken within the bounds of a rather broad
congressional delegation'' provided to the Department.\9\
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\6\ 749 F. Supp. 3d 1363, 1374-75 (S.D. Ga. 2024) (quoting Dole
at 187).
\7\ Teche Vermilion Sugar Cane Growers Ass'n Inc. v. Su, 749 F.
Supp. 3d 697, 723 (W.D. La. 2024), opinion clarified, No. 6:23-CV-
831, 2024 WL 4729319 (W.D. La. Nov. 7, 2024), and amended, No. 6:23-
CV-831, 2025 WL 1969937 (W.D. La. July 16, 2025).
\8\ Id. at 33.
\9\ Kansas, et al. v. U.S. Dep't of Labor, 749 F.Supp.3d 1363,
1374 (S.D. Ga., Aug. 26, 2024), citing AFL-CIO v. Dole, 923 F.2d
182, 187 (D.C. Cir. 1991).
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B. The Role of AEWRs in the H-2A Program
As explained in prior rulemakings, a ``basic Congressional premise
for temporary foreign worker programs . . . is that the unregulated use
of [nonimmigrant foreign workers] in agriculture would have an adverse
impact on the wages of U.S. workers, absent protection.'' \10\ The AEWR
is one of the primary ways the Department has historically met its
statutory obligation to certify that the employment of H-2A workers
will not have an adverse effect on the wages of agricultural workers in
the United States similarly employed, while ensuring that employers can
access legal agricultural labor. The AEWR is a regulatory mechanism to
prevent--not compensate for--adverse effects. The AEWR is not backward-
looking or remedial, meaning it is not ``predicated on the existence of
wage depression in the agricultural sector and [DOL] is not statutorily
required to identify existing wage suppression prior to establishing
and requiring employers to pay an AEWR.'' \11\
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\10\ 85 FR 70445, 70449 (Nov. 5, 2020) (citation omitted).
\11\ 85 FR at 70450; see also, e.g., 75 FR 6884, 6895 (Feb. 12,
2010) (reiterating justification for protection against future
adverse effect in 1989 rule); id. at 6891 (``By computing an AEWR to
approximate the equilibrium wages that would result absent an influx
of temporary foreign workers, the AEWR serves to put incumbent farm
workers in the position they would have been in but for the H-2A
program. In this sense, the AEWR avoids adverse effects . . .''); 73
FR 77110, 77167 (Dec. 18, 2008) (noting the D.C. Circuit observed
there is no ``statutory requirement to adjust for past wage
depression''); 54 FR at 28046-47 (Jul. 5, 1989) (``IRCA only
requires that the AEWR prevent future adverse effect from the use of
foreign workers, not compensate for past effect.'')
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Further, the INA does not require the Department to prove or rely
on the existence of past adverse effect but instead is focused on
prevent[ing] future adverse effect.\12\ Regardless ``of any past
adverse effect that the use of low-skilled foreign labor may or may not
have had on'' wages, the AEWR is necessary to satisfy the Department's
``forward-looking need to protect U.S. workers whose low skills make
them particularly vulnerable to even relatively mild--and thus very
difficult to capture empirically--wage stagnation or deflation.'' \13\
As the Department has noted in prior rulemaking, there is no ``reliable
method available'' to determine the existence of adverse effect in a
particular area and occupation or agricultural activity and the absence
of such a finding would not mean there has been no adverse effect, but
merely that ``imposition of the AEWR heretofore has been successful in
shielding domestic farm workers from the potentially wage depressing
effects of overly large numbers of temporary foreign workers'' into a
particular area.\14\
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\12\ See, e.g., 54 FR at 28046-47; 75 FR at 6895 (reiterating
justification for protection against future adverse effect in 1989
rule); 73 FR at 77167 (Dec. 18, 2008) (noting the D.C. Circuit
observed there is no ``statutory requirement to adjust for past wage
depression'').
\13\ 85 FR at 70450-70451.
\14\ Id. at 70451, citing 54 FR 28037, 28045 (July 5, 1989).
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In administering the H-2A program and carrying out the statutory
mandate to prevent adverse effect, the INA does not require the
Department to ``determine the AEWR at the highest conceivable point,
nor at the lowest, so long as it serves its purpose to guard against
adverse impact on the wages of agricultural workers in the United
States similarly employed.'' \15\ Rather, the `` `clear congressional
intent was to make the H-2A program usable, not to make U.S. producers
non-competitive' ''. `` `Unreasonably high AEWRs could endanger the
total U.S. domestic agribusiness, because the international competitive
position of U.S. agriculture is quite fragile.' '' \16\ The Department
must also consider factors relating to the sound and effective
administration of the H-2A program in deciding how to determine the
most reasonable methodology for establishing the AEWR to effectuate its
statutory mandate.\17\
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\15\ 88 FR 12760, 12761 (Feb. 28, 2023); see also 52 FR 11460,
11464 (Apr. 9, 1987) (``[T]he labor certification program is not the
appropriate means to escalate agricultural earnings above the
adverse effect level or to set an `attractive wage.' ''); Nat'l
Shooting Sports Found., Inc. v. Jones, 716 F.3d 200, 214-15 (D.C.
Cir. 2013) (noting that ``an agency has `wide discretion' in making
line-drawing decisions and `[t]he relevant question is whether the
agency's numbers are within a zone of reasonableness, not whether
its numbers are precisely right.' '') (quoting WorldCom, Inc. v.
FCC, 238 F.3d 449, 462 (D.C. Cir. 2001).
\16\ Id. at 12772 (quoting 54 FR 28037, 28046 (Jul. 5, 1989)).
\17\ 85 FR at 70450.
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C. Brief History of AEWR Methodologies
Concerns about the potential adverse impact resulting from a large
influx of temporary foreign workers, and development of methods to
determine and establish AEWRs to prevent it, date back to the
establishment of the Bracero Program and were at one point reflected in
international agreements that pre-date the 1986 IRCA.\18\ Since at
least 1953, ``employers seeking to import foreign nationals to work in
various crop activities (in that case, under the Bracero program) were
required to pay not less than a wage established by DOL.'' \19\ The
AEWR as a formal concept in the H-2 program was introduced in 1963, at
which point the AEWR initially was based on the Census of Agriculture's
average earnings for each state, which was conducted by the U.S. Census
Bureau and provided data for 11 East Coast H-2 user states and was
expanded and periodically adjusted thereafter.\20\ As time passed, the
establishment of AEWRs became more formalized, and AEWRs were computed
and set for the entire H-2 program, with corresponding public notice
and comment. See, e.g., 29 FR 19101-19102
[[Page 47917]]
(Dec. 30, 1964); 32 FR 4569, 4571 (Mar. 28, 1967); and 35 FR 12394-
12395 (Aug. 4, 1970).
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\18\ See 54 FR at 28039. The first Bracero Program allowed
farmers in the western United States to employ temporary foreign
workers from Mexico to work on farms and railroads beginning in May
1917. Under these agreements, employers were required to obtain a
certification from their local Employment Service office that there
were not sufficient U.S. workers to fill the jobs they offered, and
the contracts with Mexican workers had to offer the same wages that
were paid ``for similar labor in the community in which the admitted
aliens are to be employed.'' See Emergency Immigration Legislation:
Hearing before Committee on Immigration, United States Senate, 66th
Congress, Third Session, on H.R. 14461, 66 Cong. 3 (1921) (citing
Departmental Order of April 12, 1918, Concerning Admission of
Agricultural Laborers. U.S. Department of Labor, Bureau of
Immigration, Washington, April 12, 1918).
\19\ 54 FR at 28039.
\20\ Id. at 28040.
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Since 1987, following the IRCA amendments of 1986, the Department
has operated the H-2A program under regulations promulgated pursuant to
the INA and has, with brief interruption, set the AEWR for most
agricultural workers at the average wage paid to similarly employed
workers in a state or region, as determined by the USDA Farm Labor
Survey (FLS). For more than two decades after IRCA, the Department's
1989 Final Rule governed the H-2A program.\21\ The 1989 Final Rule
``dramatically expanded the use of the AEWR as a wage protection in the
H-2A program in 49 States (excluding Alaska) and first began using the
FLS to set the AEWR'' as the average wage of farmworkers, which is the
method still in use for most H-2A job opportunities.\22\ This
methodology was selected after a thorough consideration of alternatives
and litigation directing the Department to provide a reasoned
explanation for the chosen AEWR methodology.\23\ The Department noted
that the use of the FLS to set statewide AEWRs based on actual earnings
of similarly employed workers was preferable to the prior method of
basing AEWRs on the 1950s Census of Agriculture ``that had been
adjusted upward by various methods over the years.'' \24\
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\21\ See id. at 28037.
\22\ 84 FR 36168, 36186 (Jun. 26, 2019).
\23\ See 54 FR at 28038 (discussing the Department's 1987 IFR
methodology and related litigation and subsequent rounds of
rulemaking to determine a reasoned AEWR methodology); See also 52 FR
20496 (Jun. 1, 1987) (1987 H-2A IFR); AFL-CIO v. Brock, 835 F.2d
912, 915 (D.C. Cir. 1987).
\24\ Id. at 28039.
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For a brief period, under a 2008 final rule (73 FR 77110), the
Department determined the AEWR to be based on the OEWS survey. The
Department explained that under that rule, the AEWR was set ``using the
[SOC] taxonomy'' to ``set a different AEWR for each SOC [occupation]
and localized area of intended employment.'' \25\ The Department also
set the wage for each job opportunity at one of multiple wage levels
``intended to reflect education and training,'' similar to the
Congressionally-mandated prevailing wage methodology in the H-1B
program.\26\ The Department suspended this rule in 2009 citing
administrative challenges and concerns that U.S. workers may in the
future experience wage depression as a result of unchecked expansion of
the demand for foreign workers.\27\ Under the 2010 final rule (75 FR
6884), which has governed the program for more than a decade at various
intervals, the Department returned to use of the FLS hourly wage data
to determine the AEWR for field and livestock workers (combined), and
produced ``a single AEWR for all agricultural workers in a State or
region, without regard to SOC code, and no AEWR in geographic areas not
surveyed'' (e.g., Alaska and Puerto Rico).\28\
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\25\ 84 FR at 36180.
\26\ Id.
\27\ 74 FR 45906 (Sep. 4, 2009).
\28\ 88 FR at 12793-12794.
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In response to public comments on previous proposed rules related
to the methodology for determining the AEWRs, the Department considered
and rejected several alternative methodologies, including: adding an
enhancement to the USDA average wage; \29\ tying the AEWR to an index
like the Consumer Price Index or Employment Cost Index; \30\ using
various methods of setting AEWRs based on a uniform minimum wage
untethered to labor market data, such as an enhanced federal minimum
wage; \31\ eliminating AEWRs and instead using only prevailing wages
based on specific crop activities; \32\ setting a cap or ceiling on the
AEWR employers must pay; \33\ and using the highest AEWR among those
reported by the FLS and OEWS at the local, state, and national
levels,\34\ among other suggested alternative methods.
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\29\ See, e.g., 54 FR at 28045, 28046-47, 28051 (rejecting use
of an enhanced wage methodology for foreign workers because, absent
data indicating a need to correct wage suppression, it could be
inflationary and beyond the Department's authority.).
\30\ See, e.g., 85 FR at 70455 (rejecting use of the CPI because
it measured changes in consumer prices, not changes in wages); 88 FR
at 12773 (rejecting use of the ECI ``or other broad indices''
because they would provide only ``a general measure of changes in
the cost of labor across the private sector,'' rather than ``actual
wage data for agricultural workers in particular geographic
areas.'').
\31\ See, e.g., 88 FR at 12773 (rejecting use of a minimum wage
or an enhanced minimum wage because these ``predetermined wages
would be untethered from data on wages employers pay to'' similarly
employed workers and the method would ``immediately and dramatically
reduce the wages of many H-2A and similarly employed workers . . .);
73 FR 77110, 77172 (Dec. 18, 2008) (rejecting a national uniform
wage because it would ``not reflect market wages'' and ``would prove
to be below market rates in some areas and above market rates in
other areas.'').
\32\ See, e.g., 54 FR at 28045, 28047 (rejecting use only of a
crop-specific minimum wage and stating an average AEWR wage is
necessary to address ``pockets of past adverse effect'' that are
difficult to measure but may persist); 88 FR at 12768 (Feb. 28,
2023) (rejecting similar methods for similar reasons, and noting the
AEWR functions as ``a prevailing wage defined over a broader
geographic area and over a broader occupational span''); See also 87
FR 61660, 61687, 61701 (Oct. 12, 2022) (explaining prevailing wage
rates are not available for all crop activities and locations in
every year and the Department will not issue a specific prevailing
wage determination where a compliant state-issued survey prevailing
wage is unavailable).
\33\ See, e.g., 88 FR at 12773 (noting capped AEWRs would not
reflect actual wage changes and ``imposition of such a cap would
produce wage stagnation'' especially ``in years when the wages of
agricultural workers are rising faster . . .'').
\34\ See, e.g., 88 FR at 12773-12774 (rejecting this method
because it would increase regulatory complexity and unpredictability
and would arbitrarily impose a wage that is highest among multiple
data sources when the Department's preferred sources are available,
without noting flaws in the methodology of the preferred sources or
explaining how other sources would produce a more accurate wage,
which may result in employers paying an ``enhanced wage untethered
to the best available information . . .'' and ``place unnecessary
upward pressure on wages . . .'').
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D. Recent Rulemaking and Litigation
As part of a comprehensive NPRM published in 2019, the Department
proposed to establish occupation-specific statewide hourly AEWRs for
non-range occupations (i.e., all occupations other than herding and
production of livestock on the range) using data reported by FLS for
the SOC code in the State or region, if available, or data reported by
the OES (now OEWS) survey for the SOC code in the State, if FLS data in
the State or region was not available.\35\ The Department explained
that establishing AEWRs based on data more specific to the agricultural
services or labor being performed under the SOC system would better
protect against adverse effect on the wages of agricultural workers in
the United States similarly employed. The Department expressed concern
that the AEWR methodology under the 2010 Final Rule could have an
adverse effect on the wages of workers in higher paid agricultural SOC
codes, such as supervisors of farmworkers and construction laborers,
whose wages may be inappropriately lowered by use of a single hourly
AEWR based on the wage data collected for the six SOC codes covering
field and livestock workers (combined) when the essence of the
employer's job opportunity is equivalent to and should be treated like
other jobs in the higher paid occupations outside of the field and
livestock workers (combined) category.\36\
---------------------------------------------------------------------------
\35\ See 84 FR at 36171 (Jul. 26, 2019).
\36\ See 84 FR at 36180-36185.
---------------------------------------------------------------------------
On September 30, 2020, USDA announced its intent to discontinue the
FLS and that it would not publish the FLS in November 2020. Litigation
challenging USDA's cancellation of the FLS data collection and November
annual report publication followed and,
[[Page 47918]]
on October 28, 2020, in United Farm Workers, et al. v. Perdue, et al.,
No. 20-cv-01452 (E.D. Cal. filed Oct. 13, 2020), the court
preliminarily enjoined USDA from giving effect to its decision to
cancel the October 2020 FLS data collection and cancel its November
2020 publication of the FLS.\37\ In light of USDA's action and
subsequent litigation over the announcement, the Department determined
it was necessary to bifurcate the 2019 H-2A NPRM's proposals and
published an AEWR final rule on November 5, 2020 (2020 AEWR Final
Rule), to establish a new hourly AEWR methodology with an effective
date of December 21, 2020.\38\
---------------------------------------------------------------------------
\37\ United Farm Workers, et al. v. U.S. Dep't. of Labor, et
al., 598 F.Supp.3d 878, 888 (E.D. Cal. Apr. 1, 2022); see also
United Farm Workers, et al. v. U.S. Dep't of Labor, et al., 509
F.Supp.3d 1225, 1255 (E.D. Cal. Dec. 23, 2020) (enjoining the
Department from implementing the November 2020 Final Rule).
\38\ Final Rule, Adverse Effect Wage Rate Methodology for the
Temporary Employment of H-2A Nonimmigrants in Non-Range Occupations
in the United States, 85 FR 70445, 70447-70465 (Nov. 5, 2020).
---------------------------------------------------------------------------
Under the 2020 AEWR Final Rule, the Department used the 2019 USDA
FLS wage report as the baseline for establishing the 2021 AEWRs for all
field and livestock workers (combined) occupations in all states with
annual wage data except Alaska, which constituted more than 95 percent
of H-2A job opportunities. After a two-year ``freeze,'' these AEWRs
would then be adjusted annually based on the 12-month percent change in
the BLS Employment Cost Index (ECI) beginning in 2023; an index the
Department continues to use to adjust the monthly AEWR for job
opportunities in the herding or production of livestock on the range.
For all other occupations and geographic areas not covered in the FLS
report (i.e., Alaska and U.S. territories), the 2020 AEWR Final Rule
set AEWRs using the statewide average hourly gross wage for the
occupation, as reported by the BLS OEWS survey at the state or national
level. If the job opportunity is classified in more than one SOC system
code, the AEWR will be the highest rate among the applicable
occupational codes.
The Department's 2020 AEWR Final Rule was challenged in United Farm
Workers, et al. v. Dep't of Labor, et al., No. 20-cv-01690 (E.D. Cal.
filed Nov. 30, 2020). The 2020 AEWR Final Rule was enjoined and
subsequently vacated and remanded to the Department for further
rulemaking consistent with the court's opinion.\39\ As a result of this
litigation, the Department reverted back to the methodology used in the
2010 H-2A Final Rule and continued to do so until February 28, 2023,
when the Department published the 2023 AEWR Final Rule (2023 AEWR Final
Rule).\40\
---------------------------------------------------------------------------
\39\ Id.
\40\ 88 FR 12760.
---------------------------------------------------------------------------
Under the 2023 AEWR Final Rule, the Department established the
AEWRs based on the annual average hourly gross wage in the State or
region reported from the USDA FLS or the BLS OEWS survey. The
Department adjusted the AEWRs for each State or region at least once in
each calendar year. The OFLC Administrator published an announcement in
the Federal Register to update the AEWRs based on the FLS, effective on
or about January 1, and a separate announcement in the Federal Register
to update the AEWRs based on the OEWS survey, effective on or about
July 1.
The Department determined the AEWR for the six most common
occupations--those within the FLS field and livestock workers
(combined) category \41\--using, as its primary wage source, the annual
average gross hourly wage reported by the FLS for the State or region.
Hourly wage rates were calculated based on employers' reports of total
wages paid and total hours worked for all hired workers during a
particular survey reference week each quarter. In the event the FLS
could not report the annual average hourly gross wage for the field and
livestock workers (combined) category in a particular geographic area
(e.g., in Alaska, which is not covered in FLS data) or in the
unanticipated circumstance that the FLS survey became unavailable
(e.g., suspension of the survey), the Department would use, as its
secondary source, the OEWS to determine a statewide AEWR for the field
and livestock workers (combined) category. In circumstances where
neither the FLS nor the OEWS survey reports a statewide annual average
hourly gross wage for the field and livestock workers (combined)
category in a particular State, or equivalent district or territory,
the Department used the OEWS survey's national annual average hourly
gross wage for the field and livestock workers (combined) category to
determine the AEWR in that State.
---------------------------------------------------------------------------
\41\ This currently includes the following `big six' SOC
occupational titles and codes: Farmworkers and Laborers, Crop,
Nursery and Greenhouse (45-2092); Farmworkers, Farm, Ranch, and
Aquacultural Animals (45-2093); Agricultural Equipment Operators
(45-2091); Packers and Packagers, Hand (53-7064); Graders and
Sorters, Agricultural Products (45-2041); and Agricultural Workers,
All Other (45-2099).
---------------------------------------------------------------------------
For H-2A job opportunities that do not fall within the FLS field
and livestock workers (combined) category, the Department used only the
OEWS survey to determine SOC-specific AEWRs. Under this methodology,
the AEWR for all non-range SOC codes outside the field and livestock
workers (combined) category were computed as the statewide annual
average hourly gross wage for the SOC code, as reported by the OEWS
survey. If the OEWS survey did not report a statewide annual average
hourly gross wage for the SOC code, the AEWR for that State was
determined as the national annual average hourly gross wage for the SOC
code, as reported by the OEWS survey.
The 2023 AEWR Final Rule also required employers to pay the highest
of all applicable AEWRs for job opportunities involving a combination
of duties within multiple occupations, regardless of the amount of time
a worker may spend performing such duties. Although the vast majority
of H-2A job opportunities fall within the FLS field and livestock
workers (combined) category and are subject to the single statewide
AEWR determination, some H-2A job opportunities include duties that
fall both within and outside of that category. In these circumstances
and no matter how often a particular duty or work task is performed,
the Department determined the AEWR based on the highest of the
applicable FLS and OEWS rates that employers were required to
advertise, offer, and pay for the entire work contract period.
Since its implementation on March 30, 2023, the Department has
litigated substantive issues raised in lawsuits across several district
courts challenging the methodology contained in the 2023 AEWR Final
Rule. Generally, plaintiffs in these litigation matters claim that the
methodology contained in the 2023 AEWR Final Rule exceeds the
Department's statutory authority and is arbitrary and capricious. In
USA Farm Labor, Inc., et al. v. Su, et al., No. 1:23-cv-00096 (W.D.
N.C. filed June 28, 2023), the plaintiffs include a group of 23 mostly
small farms and agricultural businesses and one H-2A filing agent
asserting that the Department violated the Administrative Procedure Act
(APA) and that the 2023 AEWR Final Rule was arbitrary and capricious
for the following reasons: (1) the Department exceeded its statutory
authority in treating agricultural positions as being ``similar'' to
nonagricultural positions for purposes of determining the AEWRs; (2)
the Department failed to consider what a worker's primary job duties
are in determining the AEWR in favor of a combination of duties rule
where even minor or intermittent job duties would shift the
determination from an FLS-based AEWR to an OEWS-based AEWR;
[[Page 47919]]
and (3) the Department failed to consider the effect its chosen AEWR
methodology will have on food prices and rule's effect on illegal
immigration. Although plaintiffs' motion for a preliminary injunction
was denied by the district court, the lawsuit remains an active appeal
in the Fourth Circuit.
In Florida Growers Association, Inc. et al. (FGA),\42\ the
plaintiffs included a group of small farms, one national association,
and several Florida grower associations. In their complaint, plaintiffs
asserted that the Department violated the APA and that the 2023 AEWR
Final Rule was arbitrary and capricious for the following reasons: (1)
the Department impermissibly used OEWS-based AEWRs for jobs involving a
``mix of duties'' falling both inside and outside of the FLS combined
field and livestock workers category for the purpose of attracting U.S.
workers to these job opportunities, rather than to prevent an adverse
effect on the pay of similarly employed U.S. workers; (2) the
Department should have confined its use of OEWS data by examining the
primary or main duties of the work to be performed or, alternatively,
applying the applicable wage to the specific work considered to be
similar employment, rather than the highest applicable AEWR to all
workers at all times under the contract; and (3) the USDA FLS data is
flawed in that it includes total compensation paid by a farm, including
overtime, Christmas or birthday bonuses, and piece-rate payments,
rather than straight hourly rates, does not include farm labor
contractors, and fails to consider non-wage expenses of H-2A employers
that the Department requires them to provide, including but not limited
to, international and local transportation and employer-provided
housing. Based on testimony provided by expert economists, the
plaintiffs further asserted that the FLS-based data provides an
accurate count of the number of persons employed in agriculture and the
average wage rate across all skill levels and occupations, but fails to
provide an appropriate entry-level or starting wage for H-2A
employment.\43\ After the court denied plaintiffs' motion for
preliminary injunction, the case was briefed for summary judgment but
later stayed pursuant to the Department's motion.\44\
---------------------------------------------------------------------------
\42\ Florida Growers Ass'n, Inc., et al. v. Su, No. 8:23-cv-
00889-CEH-CPT (M.D. Fla. 2024).
\43\ Complaint, Florida Growers Ass'n, Inc., et al. v. Su, No.
8:23-cv-00889-CEH-CPT (M.D. Fla. Apr. 21, 2023), ECF No. 1.
\44\ Id. at ECF No. 105.
---------------------------------------------------------------------------
In Teche Vermilion Sugar Cane Growers Assoc. Inc., (Teche
Vermilion),\45\ the plaintiffs included two agricultural associations,
a trade association, three farming businesses, and an individual owner
and operator of two farms seeking preliminary and permanent injunctive
relief against the rule's application and enforcement. In their
complaint, the plaintiffs asserted that the Department exceeded its
statutory authority and the 2023 AEWR Final Rule is arbitrary and
capricious under the APA because the rule: (1) required employers to
pay some H-2A workers' wages based on allegedly higher rates for ``non-
farm'' U.S. workers not similarly employed; (2) failed to adequately
address the rule's economic impact on small business, or consider other
alternatives, under the Regulatory Flexibility Act (RFA); and (3)
violated the Congressional Review Act mandate that the Department
submit a rule exceeding an alleged $100 million in economic impact to
Congress at least 60 days prior to its effective date. On September 18,
2024, the district court issued a preliminary injunction enjoining the
Department from applying the 2023 AEWR Final Rule to the named
plaintiffs and members of the association plaintiffs with respect to
the hiring of H-2A workers who grow, harvest, and process sugar cane in
Louisiana. In its ruling, the court stated that it cannot conclude that
the Department's ``use of non-farm wage surveys, such as the OEWS, to
supplement data from the FLS in setting the AEWR for H-2A workers
exceeds the DOL's statutory authority as long as its methodology is
based on workers who are `similarly employed.' '' \46\ However, the
Court further noted that the Department failed to consider or
adequately explain the basis for assigning the AEWR for non-farm heavy
and tractor-trailer truck drivers to H-2A workers engaged in driving
sugarcane trucks, including failing to assess any ``differences in the
`work performed, skills, education, training, and credentials' of these
two groups of workers.'' \47\ On August 21, 2025, plaintiffs in Teche
Vermilion filed a Motion for Entry of Final Judgment requesting that
the court convert its preliminary injunction into a final judgment and
to accordingly vacate the 2023 AEWR Final Rule.\48\ On August 25, 2025,
the Western District of Louisiana granted plaintiffs' unopposed Motion
for Entry of Final Judgment and ordered the 2023 AEWR Final Rule
vacated.\49\ As a result of the 2023 AEWR Final Rule being vacated, the
Department currently establishes a single AEWR for each state and
covering all H-2A job opportunities, except Alaska and the U.S.
territories, using the 2010 final rule methodology that is based solely
on the FLS hourly wage data for field and livestock workers (combined).
On August 28, 2025, the Department published a notice on the OFLC
website announcing the court's vacatur and stating that the AEWRs for
all H-2A job opportunities will be set according to the methodology set
forth in the 2010 final rule.
---------------------------------------------------------------------------
\45\ Teche Vermilion Sugar Cane Growers Ass'n Inc. v. Su, No.
6:23-CV-831 (W.D. La. 2023).
\46\ Teche Vermilion Sugar Cane Growers Ass'n Inc. v. Su, 749 F.
Supp. 3d 697 (W.D. La. 2024), opinion clarified, No. 6:23-CV-831,
2024 WL 4729319 (W.D. La. Nov. 7, 2024), and amended, No. 6:23-CV-
831, 2025 WL 1969937 (W.D. La. July 16, 2025).
\47\ Id. at 730-731.
\48\ Motion For Entry of Final Judgment, Teche Vermilion Sugar
Cane Growers Ass'n Inc. v. Su, No. 6:23-cv-00831-RRS-CBW (W.D. La.
Aug. 21, 2025), ECF No. 86.
\49\ Judgment, Teche Vermilion Sugar Cane Growers Ass'n Inc. v.
Su, No. 6:23-cv-00831-RRS-CBW (W.D. La. Aug. 21, 2025), ECF No. 87.
---------------------------------------------------------------------------
II. Good Cause Justification and Need for This IFR
A. The Good Cause Exception Under the APA, and the Two Separate and
Independent Bases for the Department's Invocation of the Good Cause
Exception
The Administrative Procedure Act (APA) provides an exception to
ordinary notice-and-comment procedures ``when the agency for good cause
finds (and incorporates the finding and a brief statement of reasons
therefor in the rules issued) that notice and public procedure thereon
are impracticable, unnecessary, or contrary to the public interest.'' 5
U.S.C. 553(b)(B). See also 5 U.S.C. 553(d)(3) (creating an exception to
the requirement of a 30-day delay before the effective date of a rule
``for good cause found and published with the rule''). Generally, the
good cause exception for forgoing notice and comment rulemaking
``excuses notice and comment in emergency situations, or where delay
could result in serious harm.'' \50\ While emergency situations are the
most common circumstances in which the good cause exception is invoked,
the infliction of real harm that would result from delayed action even
absent an emergency can be sufficient grounds to issue a rule without
undergoing prior notice and comment.\51\
[[Page 47920]]
And, as the D.C. Circuit noted, economic harm may be a basis on which
the good cause exception may be invoked.\52\
---------------------------------------------------------------------------
\50\ Jifry v. FAA, 370 F.3d 1174, 1179 (D.C. Cir. 2004); see
also U.S. Corp. v. U.S. E.P.A., 595 F.2d 207, 214 (5th Cir. 1979)
(``It is an important safety valve to be used where delay would do
real harm.'').
\51\ Nat. Res. Def. Council, Inc. v. Evans, 316 F.3d 904, 911
(9th Cir. 2003) (``[W]e have observed that notice and comment
procedures should be waived only when `delay would do real harm.' .
. . `Emergencies, though not the only situations constituting good
cause, are the most common.' '') (citations omitted); see also
Buschmann v. Schweiker, 676 F.2d 352, 357 (9th Cir. 1982) (``The
notice and comment procedures in Section 553 should be waived only
when `delay would do real harm' . . . The good cause exception is
essentially an emergency procedure.'') (citations omitted).
\52\ Sorenson Commc'ns v. F.C.C., 755 F.3d 702, 707 (D.C. Cir.
2014).
---------------------------------------------------------------------------
First, the Department has good cause to forgo the APA's notice-and-
comment procedures and delayed effective date requirements under the
``public interest'' prong. Under the ``public interest'' prong of the
good cause exception, ``the question is not whether dispensing with
notice and comment would be contrary to the public interest, but
whether providing notice and comment would be contrary to the public
interest.'' \53\ This prong applies here because, as is explained in
detail hereinafter, at Section II.B, the lack of a reasonable and
viable AEWR methodology, when combined with the current and imminent
labor shortage exacerbated by the near total cessation of the inflow of
illegal aliens, increased enforcement of existing immigration law, and
global competitiveness pressures described below, presents a sufficient
risk of supply shock-induced food shortages to justify immediate
implementation of this IFR (with a subsequent ``final'' final rule to
follow the comment period).
---------------------------------------------------------------------------
\53\ Mack Trucks, Inc. v. EPA, 682 F.3d 87, 95 (D.C. Cir. 2012).
---------------------------------------------------------------------------
There is ample data showing immediate dangers to the American food
supply. The methodology for calculating AEWRs in the vacated 2023 AEWR
Final Rule and even under current 2010 final rule, both of which used a
single average gross hourly wage for the vast majority of H-2A jobs
without regard to the qualifications of the employer's job offer or how
much time a worker spends performing specific duties during a work
contract period poses an imminent risk to the supply of agricultural
labor by setting unreasonably high price floors on labor. This IFR
addresses and solves this imminent threat by implementing an AEWR
methodology that results in more precise market-based price floors that
still serves its statutory function of protecting American workers, but
also, ensures that American supermarkets and U.S. consumers will have
access to safe, affordable and American-grown produce.
These types of risks to the American food supply have supported
good cause in the past and support them now.\54\ As explained in detail
below, any delay in implementing this revised AEWR policy would cause
or exacerbate imminent and significant economic harm to employers in
the U.S. agricultural sector, to authorized U.S. workers performing
agricultural labor, and to U.S. consumers of domestic agricultural
crops and commodities. Employers in the U.S. agricultural sector are
facing a structural, not cyclical, workforce crisis driven by both the
lack of an available legal workforce that is relatively mobile and able
to adjust to changes in labor demands as well as an ever hastening loss
of the mobile illegal alien workforce that had flowed in and out of the
United States through a previously porous border.\55\ Nationwide
illegal crossings are now at a rate 93% lower than the peak level
reached during the prior four years, a rate that has held steady since
June of 2025. As discussed below and based on the Department's most
recent NAWS data on U.S. crop workers, much of this illegal inflow
artificially boosted the supply of labor at relatively lower costs
compared to the labor costs associated with a legal workforce. The near
total cessation of the inflow of illegal aliens combined with the lack
of an available legal workforce, results in significant disruptions to
production costs and threatening the stability of domestic food
production and prices for U.S consumers. Unless the Department acts
immediately to provide a source of stable and lawful labor, this threat
will grow as the tools Congress provided in H.R. 1, One Big Beautiful
Bill Act, to enhance enforcement of the nation's immigration laws are
deployed.
---------------------------------------------------------------------------
\54\ See e.g., Friendship Dairies, Inc. v. Butz, 432 F. Supp.
508, 513 (E.D.N.Y.), aff'd, 573 F.2d 1290 (2d Cir. 1977) (finding
that 10% increase in price of milk, among other things, was
sufficient to support good cause because it evinced ``substantial
evidence of the serious problems confronting producers in the Order
No. 2 area and of the potential for disruption of normal marketing
channels . . . If the trend were allowed to continue, shortages of
milk would have been the likely result''); see also Am. Fed'n of
Gov't Emp., AFL-CIO v. Block, 655 F.2d 1153, 1157 (D.C. Cir. 1981)
(approving good cause rescission of regulation requiring inspection
of poultry because they would ``ameliorate'' ``poultry shortages or
increases in consumer prices'').
\55\ See CPB, National Media Release: Trump Administration
delivers 4 straight months of 0 releases at the border, nationwide
crossings remain 93% lower than the peak under Biden Administration,
https://www.cbp.gov/newsroom/national-media-release/trump-administration-delivers-4-straight-months-0-releases-border [INSERT
PERMA LINK] (last visited September 20, 2025).
---------------------------------------------------------------------------
Second, as explained in Section II.C below, the Department has good
cause under the ``impracticability'' prong to forgo the APA's notice-
and-comment procedures and delayed effective date requirements due to
USDA's decision to discontinue certain statistical surveys including
the FLS, that was submitted to OIRA on August 11, 2025, and
subsequently approved on August 12, 2025.\56\ This discontinuation went
into effect August 31, 2025, and created a regulatory gap for
establishing the AEWRs under the H-2A program that this IFR will
immediately fill. Under the 2010 H-2A Final Rule methodology that is
currently in effect due to the court's vacatur of the 2023 AEWR Final
Rule in Teche Vermilion, the Department relies on the annual results of
the FLS published by USDA in November to establish the annual AEWRs on
or before December 31 each year. USDA's August action to discontinue
the FLS means the data collection for the October quarter, which
captures employment and wage information for the July and October 2025
quarters, was canceled, as well as release of the annual report planned
for the November 2025 cycle. Although the methodology to establish the
AEWRs under this IFR is untethered from the continued use of annual FLS
wage data, the Department notes that any delay implementing this IFR,
in light of USDA's recent decision, will prevent the Department from
complying with the regulatory requirement to establish new annual
AEWRs.
---------------------------------------------------------------------------
\56\ The USDA later published notice of the discontinuation in
the Federal Register on September 3, 2025, at 90 FR 42560.
---------------------------------------------------------------------------
Accordingly, because notice and comment rulemaking would be
impracticable and against the public interest, the Department hereby
promulgates this IFR pursuant to 5 U.S.C. 553(b)(B). For the same
reasons, good cause exists for the IFR to take immediate effect, and
therefore, the Department sets the Effective Date to October 2, 2025
pursuant to 5 U.S.C. 553(d)(3).\57\
---------------------------------------------------------------------------
\57\ The Department further avers that the public is encouraged
to engage in post-promulgation notice and comment, and that it
intends to issue a ``final'' final rule wherein the Department will
take consideration of the comments.
---------------------------------------------------------------------------
B. First, The Good Cause Exception Is Independently Supported Due to
the Current Widespread and Novel Economic Hardship Faced by the
Regulated Community
1. Background Regarding the Labor Market for Agricultural Work
On January 20, 2025, President Trump issued Executive Order 14159,
Protecting the American People Against Invasion, 90 FR 8443 (Jan. 29,
2025), in
[[Page 47921]]
response to an ``unprecedented flood of illegal immigration into the
United States'' in recent years under the Biden Administration. The
Order directs federal agencies to ``employ all lawful means to ensure
the faithful execution of the immigration laws of the United States
against all inadmissible and removable aliens,'' including those who
committed illegal entry, have undocumented unlawful presence, or have
final orders of removal. Id. at Section 3(b). The Order also calls for
the efficient and expedited removal of aliens from the United States
who are recent entrants (i.e., arrived within the last two years),
enforcement of civil fines and penalties, and detention of all
``removable aliens'' until their removal proceedings are resolved or
their removal from the country.
As noted in Presidential Proclamation 10888, Guaranteeing the
States Protection Against Invasion, ``[o]ver the last 4 years, at least
8 million illegal aliens were encountered along the southern border of
the United States, and countless millions more evaded detection and
illegally entered the United States.'' 90 FR 83334 (Jan. 29, 2025). In
March 2025, the Department of Homeland Security (DHS) determined ``that
an actual or imminent mass influx of aliens is arriving at the southern
border of the United States and presents urgent circumstances requiring
a continued federal response.'' Finding of Mass Influx of Aliens, 90 FR
13622, 13622 (Mar. 25, 2025). Additionally, DHS has initiated voluntary
departure efforts, including the use of a new mobile application (``CBP
Home app''), consistent with Presidential Proclamation 10935,
Establishing Project Homecoming, 90 FR 20357 (May 14, 2025).\58\
---------------------------------------------------------------------------
\58\ See CBP, CBP Home: Assistance to Voluntarily Self Deport,
https://www.dhs.gov/cbphome [https://perma.cc/CK3X-QM79] (last
visited June 17, 2025). The CBP Home app allows aliens to register
to depart the United States voluntarily, provide required
biographical information, and notify DHS after they have departed.
DHS also offers financial and travel document assistance for some
aliens who request it, provides a $1,000 stipend upon confirmation
through the app that return has been completed, and rescinds civil
monetary fines imposed for failure-to-depart after return has been
completed. See also DHS, DHS Announces It Will Forgive Failure to
Depart Fines for Illegal Aliens who Self-Deport Through the CBP Home
App (June 9, 2025), 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.\59\ CBP also noted record lows
of 25,228 nationwide encounters, 8,024 nationwide apprehensions by U.S.
Border Patrol, and zero parole releases compared to 27,766 released in
June 2024. And finally, CBP made only 136 apprehensions on June 28: the
lowest single-day total in agency history. By August 12, 2025, CBP
continued to report that zero illegal aliens were released into the
country for the third consecutive month with illegal crossings in July
2025 dropping to the lowest level ever recorded.\60\ This trend has
continued, and illegal alien inflow stays at historic lows. On
September 19, 2025, CBP reported a fourth straight month of zero
releases at the border and illegal crossing rates remaining at 93%
lower than the peak reached during the prior four years.'' \61\
Further, the U.S. Border Patrol has reported an average of 204
apprehensions per day, a rate 96% lower than the daily average reached
during the prior four years.\62\ Finally, in addition to the near total
cessation of illegal inflow, illegal aliens are self-deporting at a
rate which has been increasing at a high rate each month. Because of
the very nature of voluntary departure, it is difficult to ascertain
the exact number of self-deportations, but the confirmed number of
voluntary departures went from just 592 in February 2025, to 4,241 in
July 2025.\63\ This represents an increase of approximately 7.17 times
over this period.
---------------------------------------------------------------------------
\59\ U.S. Custom Border and Protection, Department of Homeland
Security, press release entitled ``Most secure border in history:
CBP reports major enforcement wins in June 2025,'' July 15, 2025,
available at https://www.cbp.gov/newsroom/national-media-release/most-secure-border-history-cbp-reports-major-enforcement-wins-june
(last visited August 20, 2025).
\60\ U.S. Custom Border and Protection, Department of Homeland
Security, press release entitled ``Another record-setting month at
CBP: Border continues to be most secure in history,'' August 12,
2025, available at https://www.cbp.gov/newsroom/national-media-release/another-record-setting-month-cbp-border-continues-be-most-secure (last visited September 18, 2025).
\61\ See CPB, National Media Release: Trump Administration
delivers 4 straight months of 0 releases at the border, nationwide
crossings remain 93% lower than the peak under Biden Administration,
https://www.cbp.gov/newsroom/national-media-release/trump-administration-delivers-4-straight-months-0-releases-border [INSERT
PERMA LINK] (last visited September 20, 2025).
\62\ Id.
\63\ New ICE Data Shows Steady Rise in Immigrants Self-
Deporting, Newsweek (Sept. 4, 2025, 3:08 p.m. EDT), updated (Sept.
5, 2025, 3:36 p.m. EDT) (last visited September 20, 2025), https://www.newsweek.com/ice-data-immigrants-self-deportation-trump-administration-2124106.
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The efficacy of current immigration enforcement activities that
prioritize a secure border is a direct result of the scope and speed of
the federal government's response to the unparalleled scale of the
illegal immigration crisis facing the United States.\64\ These
enforcement efforts will imminently intensify following the enactment
of H.R. 1, One Big Beautiful Bill Act, on July 4, 2025, under which
Congress is immediately expanding federal investment in border
security, detention capacity, and interior operations during fiscal
years 2025 and 2026.\65\ As these resources are deployed to further
strengthen the U.S. Southern Border and enforce immigration laws, and
as more illegal aliens choose voluntary departure in response, the
Department anticipates an imminent and significant decline in the
number of available illegal aliens who had, in significant part,
previously worked unlawfully in the U.S. agricultural sector.
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\64\ Relevantly, U.S. Immigration and Customs Enforcement (ICE),
which has responsibility for enforcing immigration laws within the
interior of the United States, reported a record high of 56,816 in
detention as of June 2025, and that number is expected to
significantly increase. U.S. Immigration and Customs Enforcement,
Department of Homeland Security, Detention Management Reports, FY
2025, available at https://www.ice.gov/detain/detention-
management#:~:text=Detention%20Statistics. Of that group, 16,173, or
28 percent of the detained population, had a criminal conviction. An
additional 13,891 people--24 percent--had pending criminal charges.
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Agricultural employers, who have been incentivized to utilize
illegal aliens for numerous reasons including the excessively high FLS-
based AEWR, will imminently face severe challenges accessing a
sufficient and legal supply of labor to sustain current food production
levels. According to the Department's National Agricultural Worker
Survey (NAWS),\66\ agricultural employers are disproportionately and
increasingly dependent on illegal aliens with approximately 42 percent
of crop workers surveyed reported lacking authorization to work in the
United States during FY 2021-2022; compared to 36 percent in FY 2017-
2018. These workers, both illegal aliens and authorized U.S. crop
workers, are also
[[Page 47922]]
settled and relatively immobile. Data from NAWS further shows that, in
2021-2022, only 3 percent of all U.S. crop workers reportedly migrated
by following the crops while 84 percent of these workers remain settled
and did not migrate for work at all. U.S. crop workers are also aging,
as approximately 36 percent of the crop workers interviewed were 44
years of age or older, compared to less than 15 percent in 2000, and
they spent an average of 8 years working for the same employer,
compared to 3 years in 2000.
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\66\ Findings from the National Agricultural Workers Survey
(NAWS) 2021-2022: A Demographic Employment Profile of United States
Crop Workers (Sept. 2023). U.S. DOL, Employment and Training
Administration. Available at: https://www.dol.gov/sites/dolgov/files/ETA/naws/pdfs/NAWSResearchReport17.pdf.
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In short, the agricultural sector is experiencing acute labor
shortages and instability because it has long depended on a workforce
with a high proportion of illegal aliens who previously cycled in and
out of the U.S. through a porous border; now, however, those who might
have cycled in cannot do so because of the now secure U.S. Southern
Border. Further, the remaining workforce tends to be relatively
immobile and unable to adjust quickly to shifting labor demands,
resulting in significant disruptions to farmers' ability to meet
seasonal labor needs.
Most concerning for the fragile agricultural workforce are the
dwindling numbers of current U.S. crop workers who are planning to
continue working in agriculture. According to the NAWS, just over one
in every five U.S. crop workers surveyed were planning to remain in
agriculture for up to 5 years, while approximately 53 percent reported
that they could find a non-farm job within one month. Separately, with
illegal border crossings at historic lows. Agricultural employers that
have historically relied on such illegal aliens, are experiencing
economic harm caused by mounting labor shortages. According to
available studies, a hypothetical decision to heighten immigration
enforcement actions could further reduce the supply of agricultural
labor with an estimated loss of, at a relatively modest estimate,
225,000 \67\ agricultural workers.\68\
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\67\ The true number is likely much higher when accounting for
illegal aliens who are not deported but choose not to work to avoid
exposure to potential enforcement actions. See e.g., Chloe East;
Annie L. Hines; Philip Luck; Hani Mansour and Andrea Velasquez,
(2023), The Labor Market Effects of Immigration Enforcement, Journal
of Labor Economics, 41, (4), 957--996.
\68\ Rice University's Baker Institute for Public Policy noted
in a March 26, 2025, article that ``over 8 million undocumented
immigrants currently work in the U.S., contributing to the economy
in key industries. Mass deportations could worsen labor shortages,
with estimates suggesting a reduction of 1.5 million in
construction, 225,000 in agriculture, 1 million in hospitality,
870,000 in manufacturing, and 461,000 in transportation and
warehousing. This would likely lead to higher costs, increased
inflation, and slower economic growth, with states like California,
Texas, and Florida facing the greatest impact.'' See Social and
Economic Effects of Expanded Deportation Measures, published by Tony
Payan and Jos[eacute] Iv[aacute]n Rodr[iacute]guez-S[aacute]nchez of
Rice University's Baker Institute for Public Policy at Social and
Economic Effects of Expanded Deportation Measures [verbar] Baker
Institute.
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In addition, the Department does not believe American workers
currently unemployed or marginally employed will make themselves
readily available in sufficient numbers to replace large numbers of
aliens no longer entering the country, voluntarily leaving, or choosing
to exit the labor force due to the self-perceived potential for their
removal based on their illegal entry and status. The supply of American
agricultural workers is limited by a range of structural factors
including the geographic distribution of agricultural operations, the
seasonal nature of certain crops, and overall unemployment rate.\69\
Furthermore, agricultural work requires a distinct set of skills and is
among the most physically demanding and hazardous occupations in the
U.S. labor market. These essential jobs involve manual labor, long
hours, and exposure to extreme weather conditions--particularly in the
cultivation of fruit, tree nuts, vegetables, and other specialty crops
for which production cannot be immediately mechanized. Based on the
Department's extensive experience administering the H-2A temporary
agricultural visa program, the available data strongly demonstrates--a
persistent and systemic lack of sufficient numbers of qualified,
eligible and interested American workers to perform the kinds of work
that agricultural employers demand. In the most recent five years, for
example, employer demand for H-2A workers has increased by 36 percent
from 286,900 workers requested in FY 2020 to nearly 391,600 workers
requested in FY 2024, and the Department has consistently certified at
least 97 percent of employer demand for agricultural workers based on a
lack of qualified, eligible, and interested U.S. workers. For FY 2025
and as of July 1, 2025, employers seeking H-2A workers have requested
more than 320,700 worker positions and the Department has certified 99
percent of the demand based on a lack of qualified and eligible U.S.
workers. Despite efforts to broadly advertise agricultural jobs, as
required by the Department's regulations at 20 CFR 655.144, 150, 153,
and 154, the most recent data confirm that domestic applicants are not
applying for agricultural positions in sufficient numbers to meet the
temporary or seasonal workforce needs of employers. Thus, based on the
available evidence, the Department concludes that qualified and
eligible U.S. workers, whether unemployed, marginally employed, or
employed seeking work in agriculture, will not make themselves
immediately available in sufficient numbers to avert the irreparable
economic harm to agricultural employers who no longer have access to a
ready pool of illegal aliens to fulfill their labor needs.
---------------------------------------------------------------------------
\69\ 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,.
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2. Economic Forecasting Regarding Food Prices and Availability
With the historic near total cessation of illegal border
crossings--the Department must take immediate action to provide
agricultural employers with a viable workforce alternative while
concurrently averting imminent economic harm. Labor shortages can have
an immediate effect on farm operations. For example, one study found
that a mere 10 percent decrease in the agricultural workforce can lead
to as much as a 4.2 percent drop in fruit and vegetable production and
a 5.5 percent decline in farm revenue.\70\ Given that approximately 42
percent of the U.S. crop workforce are unable to enter the country,
potentially subject to removal or voluntarily leaving the labor force,
these impacts will likely be dramatically higher. The study further
estimated that a 21 percent shortfall in the agricultural workforce
would result in an overall $5 billion loss just in terms of domestic
fresh produce alone for U.S. consumers. Such significant economic
impacts not only create tangible and imminent economic harms, but they
structurally disrupt the ordinary operations of the U.S. agricultural
sector, resulting in shortages of agricultural commodities that cannot
be supplemented with imports in the near-term.
---------------------------------------------------------------------------
\70\ Zachariah Rutledge and Pierre M[eacute]rel, ``Farm Labor
Supply and Fruit and Vegetable Production,'' American Journal of
Agricultural Economics 105, no. 2 (August 15, 2022): 644-73, https://doi.org/10.1111/ajae.12332.
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Given the scale, speed, and investment in the federal government's
efforts to enforce immigration laws and restore the integrity of the
U.S. border, the Department concludes that there will be significant
labor market effects in the agricultural sector, which has long been
pushed to depend on a workforce with a high proportion of illegal
aliens. Because these illegal aliens often possess specialized skills
suited to agricultural tasks and typically earn lower wages than
authorized workers, their sudden and large-scale
[[Page 47923]]
departure is expected to significantly increase labor costs for
employers. These cost increases are very likely to limit the ability of
agricultural operations to maintain current production levels or expand
employment, resulting in downstream impacts on food supply and pricing.
Labor expenses are already a major component of U.S. agricultural
production costs, especially in the specialty crop sectors where
relatively large numbers of illegal aliens are employed. According to
USDA's Economic Research Service (ERS), labor expenses (including
noncash employee compensation) are forecasted to reach a record high in
2025, rising $2.9 billion (5.9 percent) in 2024 to $51.7 billion and
then increasing an additional $1.8 billion (3.6 percent) to $53.5
billion this year, driven by wage increases and ongoing labor
shortages.\71\
---------------------------------------------------------------------------
\71\ Farm Sector Income & Finances: Farm Sector Income Forecast
(Feb. 2025). U.S. Department of Agriculture, Economic Research
Service.
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Although hired domestic farmworkers only comprise less than 1
percent of all U.S. wage and salary workers, these workers are
essential to U.S. agriculture. Without immediate action from the
Department to assist employers in securing a reliable workforce
alternative, labor shortages will likely intensify, driving up
production costs, limiting output in key sectors such as fruits and
vegetables, and increasing reliance on imported food products. USDA
Economic Research Service (ERS) estimates that hired farm labor costs
account for nearly 15 percent of total cash expenses across the sector,
with labor-intensive sub-sectors, such as nurseries, greenhouses, and
other specialty crop growers, devoting over 40 percent of their total
cash expenses on labor.\72\
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\72\ Subedi, Dipak & Giri, Anil K. (Oct. 2024). Specialty Crop
Farms Have Highest Labor Cost as Portion of Total Cash Expenses.
U.S. Department of Agriculture, Economic Research Service. Available
at: 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/.
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These sub-sectors of U.S. agriculture, which are heavily dependent
on illegal aliens, are especially vulnerable to labor market imbalances
and cost volatility. At the same time, American agriculture is under
intense global pressure. In April 2025, for example, ERS reported that
the number of farms in the United States continued its decline to 1.88
million in 2024, the lowest in more than a century, down from 2.04
million in 2017.\73\ And finally, after decades of consistent trade
surpluses, U.S. agriculture is expected to face the largest trade
deficit on record at $49.5 billion, driven in part by increased imports
of labor-intensive commodities from countries with significantly lower
production costs.\74\
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\73\ USDA, Economic Research Service using data from USDA,
National Agricultural Statistics Service, Census of Agriculture
(through 2022) and Farms and Land in Farms: 2024 Summary (February
2025).
\74\ Hill, Alexandra E. & Sayre, James E. As Mexican Farmworkers
Flock North, Will U.S. Farms Head South? (Oct. 2024). Outlook for
U.S. Agricultural Trade: May 2025. ARE Update 28(1): 9-12. Giannini
Foundation of Agricultural Economics, University of California.
(``In 2022, the average non-H-2A U.S. farm worker earned $15 an
hour; H-2A workers in California (the state with the highest AEWR
that year) were required to be paid at minimum $17.51; and H-2A
workers in Alabama, Georgia, and South Carolina (the states with the
lowest AEWR in 2022) were required to be paid at minimum $11.99. By
comparison, the average hired farmworker in Mexico earned the
equivalent of $1.59 an hour in 2022. In the highest wage-paying
state in Mexico, Colima, the average worker earned $2.53 an hour, a
quarter of the minimum AEWR in that year.''). Available at: https://s.giannini.ucop.edu/uploads/pub/2024/10/29/v28n1_3.pdf.
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3. The Flaws in the AEWR Wage Policy That Restrict Labor Supply and
Need for a New AEWR Methodology
As the U.S. agricultural workforce faces growing instability,
employers' reliance on the H-2A visa program has expanded rapidly. Over
the past decade, demand for nonimmigrant workers under the H-2A
classification has quadrupled, and the program has become a critical
legal workforce solution for employers, particularly in labor-intensive
sectors such as specialty crops. However, the high costs to participate
in the H-2A program--including the mandatory AEWRs on top of other non-
wage costs such as housing, transportation, and fees--have become
increasingly burdensome. These requirements go far beyond the
compensation costs an employer would bear if they could hire enough
qualified and eligible local U.S. workers, placing further financial
strain on farming operations of all sizes in an industry already facing
a record trade deficit \75\ and overall grim financial outlook.
---------------------------------------------------------------------------
\75\ Kaufman, J., Jiang, H., & Williams, A. (2025). Outlook for
U.S. agricultural trade: May 2025 (Report No. AES-132). U.S.
Department of Agriculture, Economic Research Service and U.S.
Department of Agriculture, Foreign Agricultural Service. This
forecast projects the largest agricultural trade deficit in U.S.
history, with the first four months of the year resulting in a $19.7
billion deficit that is expected to continue to grow.
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Over the last 20 years, the national average FLS-based AEWR has
more than doubled from $8.56 in 2005 to $17.74 in 2025. Between 2005
and 2018, the average annual increase in the AEWR was already 2.8
percent, but the pace of annual wage growth since that time has
increased significantly. Since 2019, the average annual increase in the
AEWR was 5.5 percent, nearly double the rate of change in the earlier
period and far outpacing the 4.4 percent average annual hourly wage
growth of all other non-farm private sector workers.\76\ For 2025, the
AEWRs across the country ranged from a low of $14.83 in the Delta
Region covering the states of Arkansas, Louisiana, and Mississippi to a
high of $19.97 in California. Notably, these rates exceed the local
applicable minimum wage for domestic workers. These AEWR rates must be
paid to workers in addition to the cost of other mandatory
remuneration, benefits, and working conditions (e.g., housing,
transportation) that workers receive under the H-2A program. AEWRs have
risen substantially across all regions of the United States with the
southeastern states experiencing a nearly 10 percent increase over
2024. More than 35 percent of states experienced an AEWR wage increase
between 50 cents and 99 cents per hour while an additional 37 percent
of states experienced an increase between $1 and $1.50 per hour. Nearly
two-thirds of all states have an AEWR between $17 and $20 in 2025,
which is well above federal and state minimum wage levels. Put another
way, the national average AEWR increased by a total of $4.40 per hour
in the 15-year period from 2005 to 2019. However, the national average
AEWR has increased by more than $3.75 per hour within just the last 5
to 6 years.
---------------------------------------------------------------------------
\76\ 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.\77\ In a sector where profits margins are
already thin, such increases place agricultural employers at a
competitive
[[Page 47924]]
disadvantage, particularly when compared to growers in Mexico paying
approximately $1 to $2 per hour.\78\
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\77\ See May 2025 Farm Labor Report, National Agricultural
Statistics Service (NASS), Agricultural Statistics Board, United
States Department of Agriculture, (May 21, 2025).
\78\ For example, in 2023 and 2024, the U.S. farm sector
reported overall declining profitability; the vast majority of farms
earned $1,000,000 or less in gross sales. Stephanie Rosch, Christine
Whitt, 2023 and 2024 Farm Sector Profitability: Issues for Congress
(Dec. 21, 2024), available at 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.
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Additional upward pressure on labor costs--whether due to continued
AEWR escalation or other regulatory requirements \79\--threatens the
viability of farming operations, especially as substantial numbers of
illegal aliens are removed or voluntarily depart from the U.S. labor
force.\80\ Based on the Department's program experience, the
combination of rapid increases in the AEWRs, additional non-wage costs
to employ H-2A workers, and other increases in regulatory compliance
costs has materially slowed the overall growth of employer labor demand
in the last two years with respect to the total number of H-2A workers
being requested for labor certification. For instance, for several
years prior to 2023, the average annual rate of growth in employer
demand for H-2A worker positions was almost 15 percent. However, the
growth in employer demand for H-2A workers has dramatically slowed to
1.98 percent in 2023 (398,908), compared to 2022 (382,354), and a mere
0.42 percent in 2024 (391,590).\81\
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\79\ According to a recent study conducted as a cooperative
research grant through the USDA's Office of the Chief Economist,
researchers analyzed relevant non-wage costs on employers
participating in the H-2A program, including fees, transportation,
housing, and other recruitment expenses, finding that the minimum
cost of nonwage expenses for H-2A workers is approximately $10,000
per worker. For employers requesting 100 workers, the estimated DOL
and DHS fees would cost $15.60 per worker ($11 per worker in labor
certification and $4.60 per worker in nonimmigrant worker petition),
while applying for 10 workers would cost four times more. In
addition, informal surveys of large H-2A employers suggest a typical
recruitment fee of $100-$250 per worker and $1,500-$3,500 per
application in U.S. agent costs. USDA estimates the cost of
transporting H-2A workers to the United States from their home
countries from $400 to $650 per worker with housing costs range
between $9,000 and $13,000 per worker, making it the biggest nonwage
expense for H-2A employers. See Marcelo Castillo, Philip Martin, and
Zachariah Rutledge, Whither the H-2A Visa Program: Expansion and
Concentration, published in Choices Magazine, Volume 39, Quarter 1
(June 2024) and available at https://www.choicesmagazine.org/choices-magazine/submitted-articles/whither-the-h-2a-visa-program-expansion-and-concentration (last visited September 14, 2025).
\80\ The Department is also aware of the extensive discussions
in Congress on the AEWR and various bipartisan bills introduced to
immediately alter the methodology for determining the AEWRs in the
H-2A program. For example, on January 18, 2024, the Supporting Farm
Operations Act of 2024 was introduced to freeze the AEWRs in effect
on December 31, 2023, through the end of 2025. See Support Farm
Operations Act. S. 3848, H.R. 7046, 118th Cong. (2024). Available
at: 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.
\81\ Concerns regarding the negative effects of rapidly rising
AEWRs in recent years were also noted by a bipartisan Agricultural
Labor Working Group (ALWG), which was formed in 2023 by the House
Committee on Agriculture. In its final report released on March 7,
2024, the ALWG noted that the ``strictures of current law are
driving up costs in the H-2A program and acting as barriers to entry
for the program.'' With unanimous support, the ALWG recommended a
one-year freeze on the AEWRs and caps to increases and decreases to
provide more stability and predictability related to an employer's
wage obligations. See H. Rpt. Final Report with Policy
Recommendations. House Committee on Agriculture, Agricultural Labor
Working Group at 10. Available at: https://agriculture.house.gov/uploadedfiles/alwg_final_report_-_3.7.23.pdf.
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Importantly, these rising AEWR levels have not resulted in a
meaningful increase in new entrants of U.S. workers to temporary or
seasonal agricultural jobs. Agricultural work remains physically
demanding, often takes place in remote locations, carries health and
safety risks, and typically lacks advancement opportunities--factors
that continue to discourage participation by the domestic workforce.
Despite rising wages, such jobs are still not viewed as viable
alternatives for many workers. At the same time, U.S. demand for fresh
fruits and vegetables continues to grow, and the vast majority of this
labor remains non-automated. Decline in the illegal alien population
will only exacerbate this already pressing mismatch in the agricultural
labor market and deprive growers of a relatively cheaper labor supply
on which they have become economically reliant. (A substantial body of
research estimates that illegal alien workers earn between four percent
and 24 percent less than similarly situated legal workers, giving
employers a strong financial incentive to hire illegal labor.) \82\
Despite rising wages, there is no indication that unemployed or
marginally attached U.S. workers are entering the agricultural labor
force in meaningful numbers. Without swift action, agricultural
employers will be unable to maintain operations, and the nation's food
supply will be at risk.
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\82\ See Borjas, George J., and Hugh Cassidy, The wage penalty
to undocumented immigration. Labour Economics 61 (2019): 101757;
Donato, Katharine M., and Douglas S. Massey. ``Effect of the
Immigration Reform and Control Act on the wages of Mexican migrants.
'' Social Science Quarterly (1993): 523-541; Kossoudji, Sherrie A.,
and Deborah A. Cobb-Clark. ``Coming out of the shadows: Learning
about legal status and wages from the legalized population.''
Journal of Labor Economics 20, no. 3 (2002): 598-628; Rivera-Batiz,
Francisco L. ``Undocumented workers in the labor market: An analysis
of the earnings of legal and illegal Mexican immigrants in the
United States.'' Journal of Population Economics 12, no. 1 (1999):
91-116.)
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Under such conditions, the current methodology for determining the
AEWRs is an unworkable barrier to securing a legal agricultural
workforce. The H-2A program should be a viable legal pathway--not a
regulatory dead end. The Department has long recognized that ``clear
congressional intent was to make the H-2A program usable, not to make
U.S. producers non-competitive'' and that ``[u]nreasonably high AEWRs
could endanger the total U.S. domestic agribusiness, because the
international competitive position of U.S. agriculture is quite
fragile.'' \83\ The unreasonably high FLS-based AEWRs were only
workable because agricultural employers could turn to low-priced
illegal aliens, but that is no longer the case. U.S. agricultural
employers need a legal and stable workforce to support their farming
operations, and persistent labor shortages and increases in production
costs will only harm U.S. competitiveness, threaten food production,
drive up consumer prices, and create instability in rural communities.
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\83\ 54 FR at 28046.
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Thus, the Department concludes, based on all available evidence and
studies, that immediate reform to the H-2A program's minimum wage
policy, or the AEWRs, is necessary to avoid imminent widespread
disruption across the U.S. agricultural sector. Without prompt action,
agricultural employers
[[Page 47925]]
will face severe labor shortages, resulting in disruption to food
production, higher prices, and reduced access for U.S. consumers,
particularly to fresh fruit and vegetables. Further, the Department
concludes that qualified and eligible U.S. workers will not make
themselves available in sufficient numbers, even at current wage
levels, to fill the significant labor shortage in the agricultural
sector. As discussed in detail below, the reforms contained in this IFR
of the H-2A program's wage policy are urgently needed to restore the
usability of the H-2A program and to provide a practical, lawful
workforce alternative to illegal aliens. These changes ensure that
agricultural employers offer fair wages to legally authorized workers--
consistent with wages paid in comparable farm and non-farm jobs--while
maintaining compliance with immigration law and supporting the
stability of the nation's food supply.
As the regulatory impact analysis indicates, the Department
anticipates negative impacts for certain populations associated with
this regulation. In particular, certain current H-2A workers may
experience reductions in wages as a result of lower prevailing wage
rates. However, the Department expects that this effect will be
mitigated by an increase in the number of certified H-2A job
opportunities, which will create additional employment for new H-2A
workers who may otherwise lack access to lawful agricultural employment
in the United States. The Department also acknowledges that illegal
aliens currently employed in agriculture may be adversely affected as
growers shift toward reliance on the lawful H-2A program rather than
illegal aliens.
C. Second, the Good Cause Exception is Separately and Independently
Supported by the Discontinuation of the FLS by the Department of
Agriculture and the Court Ordered Vacatur of the 2023 AEWR Final Rule
As discussed above, in Section I.D., on August 21, 2025, plaintiffs
in Teche Vermilion filed a Motion for Entry of Final Judgment
requesting that the court convert its preliminary injunction into a
final judgment and to accordingly vacate the 2023 AEWR Final Rule.\84\
On August 25, 2025, the Western District of Louisiana granted
plaintiffs' unopposed Motion for Entry of Final Judgment and ordered
the 2023 AEWR Final Rule vacated.\85\ As a result of the vacatur, the
methodology for determining the AEWRs reverted back to the 2010 H-2A
Final Rule which sets the AEWRs based solely on the annual weighted
average hourly wage for field and livestock workers (combined) as
reported by the FLS and published in November each year by USDA.\86\
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\84\ Motion For Entry of Final Judgment, Teche Vermilion Sugar
Cane Growers Ass'n Inc. v. Su, No. 6:23-cv-00831-RRS-CBW (W.D. La.
Aug. 21, 2025), ECF No. 86.
\85\ Judgment, Teche Vermilion Sugar Cane Growers Ass'n Inc. v.
Su, No. 6:23-cv-00831-RRS-CBW (W.D. La. Aug. 21, 2025), ECF No. 87.
\86\ 20 CFR 655.103 (2010); 20 CFR 655.120(c) (2010).
---------------------------------------------------------------------------
However, on August 11, 2025, USDA made the determination, based on
its own statutory authority, to discontinue surveys and further
administration of the FLS program and the request was subsequently
approved by OIRA on August 12, 2025, with an immediate effective date
of August 31, 2025.\87\ As a result of this determination, USDA
canceled the October quarter's data collection for the FLS that
collects employment and wage information for the July and October 2025
quarters from farm establishments. Without the October data collection,
USDA cannot produce a November 2025 report containing the annual gross
hourly wage rates for field and livestock workers (combined) for each
state or region based on quarterly wage data collected from employers
during calendar year 2025. Under the 2010 H-2A Final Rule methodology
for establishing the AEWRs, the November 2025 FLS report would be used
to establish and publish the hourly AEWRs for the next calendar year
period on or before December 31, 2025, as required by the Department's
regulations.\88\
---------------------------------------------------------------------------
\87\ https://www.reginfo.gov/public/do/PRAOMBHistory?ombControlNumber=0535-0109#; 90 FR 42560 (Sep. 3,
2025).
\88\ 20 CFR 655.120(c) (2010).
---------------------------------------------------------------------------
Because the methodology for establishing the AEWRs under the 2010
H-2A Final Rule does not provide for the use of a data source other
than USDA FLS, USDA's recent determination to discontinue
administration of the FLS program created an imminent regulatory gap,
leaving the Department without the means to establish updated AEWRs for
the 2026 calendar year period. Given the requirement to publish updated
AEWRs on or before December 31, 2025, immediate action is necessary.
In the absence of the FLS, the methodology for establishing the
AEWRs under the 2010 H-2A Final Rule provides the Department with no
other mechanism for establishing the annual AEWRs that it is required
to publish pursuant to 29 CFR 655.120(c). Section 20 CFR 655.103
requires the Department to base the AEWR on the FLS survey ``as
published annually'' based on USDA's ``quarterly wage survey.''
However, as explained above, these data will not be published due to
USDA's discontinuation of its FLS. There are no other provisions
establishing what an ``AEWR'' is for purposes of 20 CFR 655.120(c).
The Department seeks to fill this imminent regulatory gap and
promote long-term stability in administering the H-2A program by
immediately adopting revisions to the AEWR methodology that rely on the
BLS OEWS as the sole source of employment and wage information for
establishing more precise skill-based AEWRs for all job opportunities
specific to each state, which the FLS is not capable of reporting.
Employers using the H-2A program depend on the existence of regularly
published AEWRs to understand their minimum wage obligations to
workers, and the Department has a statutory mandate to protect the
wages of similarly employed U.S. workers from adverse effect. The
Department's inability to establish the AEWRs for calendar year 2026
would lead to a regulatory collapse of minimum wage requirements in the
H-2A program as employers would face significant economic uncertainty
with respect to what minimum wage requirements would apply and be
enforced by the Department under their work contracts with
farmworkers.\89\
---------------------------------------------------------------------------
\89\ Moreover, in the absence of a FLS-based AEWR, the
requirements set forth under the 2010 H-2A Final Rule at 20 CFR
655.120 provides that a regulated employer would have to offer the
highest of ``the AEWR [which no longer exists], the prevailing
hourly wage or piece rate, the agreed-upon collective bargaining
wage, or the Federal or State minimum wage, except where a special
procedure is approved for an occupation or specific class of
agricultural employment.'' While failure to publish an AEWR is
problematic, in its own right, as a failure of the Department to
satisfy a regulatory mandate, it would also lead to Federal or State
minimum wages being the next highest rate in many instances.
---------------------------------------------------------------------------
In short, the status quo following the Teche Vermilion order to
vacate the 2023 AEWR Final Rule and discontinuation of the FLS by USDA
in August 2025 will lead to a disruptive and uncertain regulatory
environment. This outcome would occur either if the Department did
nothing, or if the Department opted to publish this rule via notice and
comment instead of as an IFR. Therefore, good cause exists for the
Department to provide a new methodology for determining the AEWRs so
the Department can publish new AEWRs in time for employers to use by
the start of 2026.
Recognizing the need to publish a notice in the Federal Register
before the
[[Page 47926]]
end of calendar year 2025, the Department has considered but rejected
relying on the 2024 AEWRs and later switching to the IFR's proposed
methodology. Crucially, because the FLS has been discontinued by USDA,
there is no USDA data collection that could occur in time for the
mandatory January 1, 2026 publication of the AEWRs. Because the
Department will have to change to the OEWS in any event, it is clear
that the benefits of making the switch immediately outweigh the minor
costs. As explained in detail below, the Department has determined that
the OEWS is a superior data source to the FLS for establishing more
precise skill-based AEWRs covering all job opportunities specific to
each state and will possess an even higher degree of superiority once
the anticipated expansion of the OEWS to collect information from farm
establishments begins during calendar year 2026. The Department sees no
benefit in continuing to rely, even temporarily, on AEWRs established
under the 2010 Final Rule using a methodology and data sources that
cannot produce more precise estimates of the average wages paid to U.S.
workers similarly employed based on the skills and qualifications
required by employers who are seeking to employ H-2A nonimmigrant
workers, and then instituting a new methodology shortly thereafter
during the peak filing months of November through March and after many
employers have business contracts in place.\90\
---------------------------------------------------------------------------
\90\ Courts have frequently recognized that this kind of a
``regulatory vacuum'' militates in favor of finding good cause. See
e.g., Am. Fed'n of Gov't Emp., AFL-CIO v. Block, 655 F.2d 1153, 1157
(D.C. Cir. 1981) (``Although the trial judge indicated that he was
only voiding the status quo order and was not mandating the action
to be taken by the Department to comply with his injunction, the
absence of specific and immediate guidance from the Department in
the form of new standards would have forced reliance by the
Department upon antiquated guidelines, thereby creating confusion
among field administrators, and caused economic harm and disruption
to those northeastern processors whose inspection lines ran at
varying speeds.''); Coal. for Parity, Inc. v. Sebelius, 709 F. Supp.
2d 10, 20 (D.D.C. 2010) (``courts within this Circuit have
considered the need for regulatory guidance as one factor in
assessing whether an agency has ``good cause'' to forego notice and
comment.'') Indeed, as in AFL-CIO v. Block, the mere existence of an
undesirable ``backstop'' does not weigh against a finding of good
cause.
---------------------------------------------------------------------------
Accordingly, in addition to, and as a separate and independent
basis for good cause, (1) the Teche judgment that vacated the 2023 AEWR
Final Rule and replaced it with the 2010 AEWR Final Rule, and (2) the
discontinuance of the FLS creates a need for immediate action to ensure
compliance with the regulatory requirement to establish updated AEWRs
for 2026. The Department must take effective action by January 1, 2026,
otherwise, the H-2A application environment will be subject to
disruption and uncertainty. The Department explains in great detail why
the methodology that this IFR implements is the best possible
methodology. There is simply no good reason why the Department should
opt for a different methodology on a temporary basis before switching
to the new one. Indeed, such oscillations on a short-term basis would
be disruptive.
III. Implementation of This IFR
This IFR amends the AEWR methodology announced in the 2010 H-2A
Final Rule and amends the regulatory text in 20 CFR 655.120(b) which
had not been amended after the vacatur of the 2023 AEWR Final Rule. Any
job orders for non-range job opportunities submitted to the OFLC
National Processing Center (NPC) in connection with an Application for
Temporary Employment Certification for H-2A workers before the
effective date of this final rule will be processed using the 2010 H-2A
Final Rule methodology, under which the AEWR for all non-range H-2A job
opportunities is equal to the annual average hourly gross wage rate for
field and livestock workers (combined) in the State or region as
reported by FLS. That means employers must pay the wage rate listed in
a currently certified job order to all H-2A workers and all workers in
corresponding employment for the duration of the work contract period
provided it is still higher than the applicable AEWR published under
this IFR. See 20 CFR 655.120(b)(5)-(6). The methodology established by
this IFR, as described in revisions adopted by the Department under 20
CFR 655.120(b)(1)(iii), applies to any job orders for non-range job
opportunities submitted to the NPC in connection with an Application
for Temporary Employment Certification, as set forth in 20 CFR 655.121,
on and after the effective date of this IFR, including job orders filed
concurrently with an Application for Temporary Employment Certification
to the NPC for emergency situations under 20 CFR 655.134.
In order for employers to understand their wage obligations upon
the effective date of this IFR, the Department is listing below the
statewide AEWRs for Skill Level I (Entry-Level) and Skill Level II
(Experience-Level) qualifications applicable to the field and livestock
workers (combined) category for each state pursuant to 20 CFR
655.120(b)(1)(i). In addition, the Department is listing in the last
column the statewide downward compensation adjustments to the
applicable AEWRs that can only be applied to H-2A workers who are
provided with housing at no cost pursuant to 20 CFR 655.120(b)(3) of
this IFR. For example, if employers are seeking to employ H-2A workers
in Alabama for jobs in any of the five SOC codes encompassed by the
``field and livestock workers (combined)'' category, their job orders
would specify in the job order (i.e., Field A.8b of the Form ETA-790A)
a wage offer to U.S. workers no less than $11.25 per hour where the
duties and qualifications are commensurate with a Skill Level I
position. For any H-2A worker(s) employed under the associated
temporary agricultural labor certifications, employers would specify in
Field A.8e or Addendum A of the job order wage offers to H-2A workers
no less than $10.05 per hour ($11.25 per hour for Skill Level I minus
$1.20 per hour adjustment).
Additionally, the Department has posted contemporaneously with the
publication of this IFR, a Microsoft Excel file on the OFLC Foreign
Labor Application Gateway (FLAG) System at 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 Sec. 655.120 (b)(1)(I) AND COMPENSATION ADJUSTMENT FOR H-2A
WORKERS ONLY
----------------------------------------------------------------------------------------------------------------
Skill level II H-2A adverse
State Skill level I (experience- compensation
(entry-level) level) adjustment
----------------------------------------------------------------------------------------------------------------
Alabama......................................................... $11.25 $14.95 -$1.20
[[Page 47927]]
Alaska.......................................................... 14.79 20.01 -1.90
Arizona......................................................... 15.32 18.01 -2.10
Arkansas........................................................ 13.40 16.18 -1.13
California...................................................... 16.45 18.71 -3.00
Colorado........................................................ 16.28 20.02 -2.18
Connecticut..................................................... 15.93 18.20 -2.06
Delaware........................................................ 14.61 19.63 -1.85
District of Columbia............................................ 17.47 23.80 -2.64
Florida......................................................... 12.47 15.06 -2.29
Georgia......................................................... 12.27 16.22 -1.75
Guam............................................................ 9.70 10.89 -2.35
Hawaii.......................................................... 14.36 18.49 -3.18
Idaho........................................................... 12.92 17.07 -1.84
Illinois........................................................ 15.48 18.75 -1.79
Indiana......................................................... 14.93 19.22 -1.27
Iowa............................................................ 14.20 18.87 -1.15
Kansas.......................................................... 12.69 18.14 -1.26
Kentucky........................................................ 13.94 17.99 -1.24
Louisiana....................................................... 9.59 14.84 -1.35
Maine........................................................... 14.81 18.95 -1.60
Maryland........................................................ 15.35 18.21 -2.31
Massachusetts................................................... 15.29 17.57 -2.42
Michigan........................................................ 13.78 17.47 -1.32
Minnesota....................................................... 14.60 19.33 -1.68
Mississippi..................................................... 9.74 14.92 -1.15
Missouri........................................................ 14.56 18.74 -1.28
Montana......................................................... 13.03 18.48 -1.80
Nebraska........................................................ 14.20 19.26 -1.24
Nevada.......................................................... 14.54 18.40 -2.15
New Hampshire................................................... 13.99 16.14 -1.96
New Jersey...................................................... 16.05 19.41 -2.28
New Mexico...................................................... 12.51 16.20 -1.44
New York........................................................ 15.68 18.75 -2.40
North Carolina.................................................. 12.78 16.39 -1.69
North Dakota.................................................... 12.31 18.98 -1.27
Ohio............................................................ 14.38 18.11 -1.23
Oklahoma........................................................ 11.27 16.01 -1.22
Oregon.......................................................... 15.25 17.62 -2.11
Pennsylvania.................................................... 13.88 17.99 -1.52
Puerto Rico..................................................... 9.50 10.37 -0.71
Rhode Island.................................................... 14.15 17.17 -1.87
South Carolina.................................................. 12.14 15.92 -1.54
South Dakota.................................................... 13.19 17.48 -1.20
Tennessee....................................................... 12.44 16.64 -1.60
Texas........................................................... 11.81 15.67 -1.84
Utah............................................................ 12.48 16.86 -1.84
Vermont......................................................... 15.96 19.23 -1.61
Virgin Islands.................................................. 10.98 14.34 -1.59
Virginia........................................................ 13.90 18.40 -2.08
Washington...................................................... 16.53 19.00 -2.49
West Virginia................................................... 12.00 16.15 -1.12
Wisconsin....................................................... 13.29 18.22 -1.29
Wyoming......................................................... 11.34 17.23 -1.32
----------------------------------------------------------------------------------------------------------------
When the OFLC Administrator publishes subsequent updates to the
AEWRs in the Federal Register, as required by 20 CFR 655.120(b)(4) of
this final rule, the adjusted AEWRs will be effective as of the date of
publication in the corresponding Federal Register notices. If the new
AEWR applicable to the employer's certified job opportunity is higher
than the highest of six applicable wage rates--the previous AEWR, the
current prevailing hourly wage rate, the current prevailing piece rate,
the current agreed-upon collective bargaining wage, the current Federal
minimum wage rate, or the current State minimum wage rate, the employer
must pay that adjusted AEWR upon the effective date of the new rate.
See 20 CFR 655.120(b)(5). Conversely, if an updated AEWR for the
occupational classification and geographic area is published in the
Federal Register during the work contract, and the updated AEWR is
lower than the rate guaranteed on the job order, the employer must
continue to pay at least the rate guaranteed on the job order. See 20
CFR 655.120(b)(6).
The Department also acknowledges that there are four different
parties with potential reliance interests that are likely to be
impacted by this IFR: (1)
[[Page 47928]]
agricultural employers; (2) U.S. workers currently, or potentially,
employed in the agricultural sector; (3) non-U.S. workers currently, or
potentially, legally employed in the agricultural sector via the H-2A
rules; and (4) the U.S. consumers of U.S.-grown agricultural
commodities. The Department has carefully considered the impact of this
IFR on each of these groups, especially in this IFR's economic analysis
of transfers and rule familiarization costs. The Department
acknowledges that the overall impact of this new methodology will be a
reduction in the AEWRs, or minimum hourly wage rate floors for H-2A
workers and workers in corresponding employment that are likely to
result in wage transfers to employers as a result of adopting more
precise skill-based AEWRs based on the actual qualifications of the job
opportunity as well as the adverse housing adjustment factor. The
Department acknowledges these reliance interests and has accounted for
them in this IFR, but as an initial matter concludes that they are far
outweighed by other reliance interests and other significant reasons
that support the promulgation of this IFR.
First, the Department believes that, in many ways, the IFR serves
these groups' reliance interests, including those of U.S. agricultural
employers who, by virtue of being recurring seasonal users are the most
likely participants in the H-2A system to have serious reliance
interests. Most significantly, the discontinuation of the FLS by the
USDA has created a regulatory vacuum that this IFR fills. The
Department believes a key reliance interest among these recurring
participants in the H-2A program is to have an AEWR that is published
and can be used for facilitating the preparation of H-2A job orders and
applications at the start of the calendar year, regardless of
regulatory methodology that determines the AEWRs. By putting a new
methodology in place before the start of the calendar year, this IFR
ensures that this reliance interest is not damaged by the regulatory
vacuum caused by the discontinuation of the FLS. The Department
believes that the analysis of rule familiarization costs thoroughly
accounts for the reliance interests of U.S. agricultural employers and
demonstrates that they are offset by the benefits of an increased
supply of H-2A workers.
Moreover, the Department has demonstrated that changes to the AEWR
methodology are necessary to use a more reliable and robust source of
data and that more accurately accounts for both the wide array of
occupations in the H-2A program, and the varying qualifications and
skill levels of the work required by employers. Critically, the
methodological changes contained in this IFR are more reflective of the
market-based wages being paid to U.S. workers similarly employed, and
reducing any distortion caused by the previous AEWR methodology that
created exorbitant wages. Thus, the Department initially concludes that
these changes will allow it to better carry out its statutory mandate
in a manner that balances the needs and interests of workers and
agricultural employers.
Turning to the potential reliance interest of U.S. workers in the
current methodology, the evidence relied on throughout this IFR
strongly indicates that such reliance is tethered to a labor market
that is dramatically changing and increasingly unstable. As discussed,
the current and imminent labor shortage and the subsequent natural
correction of a labor market artificially impacted by illegal aliens
cannot be avoided. The Department simply has no evidence of the
existence of a substantial population of U.S. workers who are willing
and able to accept wage rates that are reasonable and proportionate to
agricultural work but are deterred from entering agricultural work by
AEWR-priced H-2A workers. And such reliance interest is vitiated by the
USDA's discontinuation of the FLS: even if the Department did nothing,
the FLS will cease, thus making any reliance interest on it misplaced
(and, as explained above, reinforcing the benefit of this IFR to
reliance interests by filling the regulatory gap). Such a slight-to-nil
reliance interest is far outweighed by the duty the Department has to
address the now correcting labor market, and implement the AEWR
methodology laid out here, for those lawful H-2A workers, and all of
the other evidence and reasons that are set forth in this IFR.
As to H-2A workers, to the extent such reliance exists, it is based
on voluntary participation in temporary and seasonal work contracts
authorized under the H-2A program. The Department initially concludes
that if such a reliance interest could even be said to exist, it is too
highly attenuated and speculative to be given much if any weight. The
Department also acknowledges that U.S. workers in corresponding
employment may have similar reliance interests, but these interests are
outweighed by the evidence and reasons that support this IFR. And, the
Department expressly acknowledges the bottom-line reliance interest
that these workers may have--their level of expected remuneration in
robust detail in this IFR's analysis of transfers. The Department has
considered other potential reliance interests, such as a H-2A workers
potential financial planning based on an expected level of compensation
rooted in the FLS, but considers these of low weight for two reasons
with respect to this IFR: first, because the USDA's discontinuation of
the FLS already undermines this expectation regardless of this IFR; and
second, because it is highly attenuated, relying on numerous logical
steps for any particular individual. To the extent these are reliance
interests at all, the Department does not consider them to rise to the
level of serious reliance interests requiring further analysis but
welcomes comment on this aspect of the IFR.
Finally, with respect to U.S. consumers of agricultural products,
their potential reliance interests with respect to the H-2A program are
that the program will supply a sufficient level of labor to maintain
the production of agricultural commodities at a reasonable price. This
IFR enhances this reliance interest by filling the aforementioned
regulatory vacuum to ensure the stability of the H-2A system, by making
the AEWR more precise and tethered to the real world skill-level
requirements of jobs, thereby allowing market forces to dictate the
cost of labor, while also eliminating the 2010 AEWR rule that set an
artificially and unreasonably high price floor for H-2A labor.
The Department welcomes public comment on what, if any, reliance
interests exist among these groups, among specific subgroups or
individuals that compose these groups, any groups with reliance
interests that have not been identified, and any evidence or data that
has probative value of any of these issues.
IV. Discussion of Changes to the AEWR Methodology
A. The Department Will Use the OEWS to Determine Skill-Based AEWRs for
all Job Opportunities
As noted in prior rulemaking, the Department has always sought to
use the best available information on occupational wages representing
workers in the United States similarly employed. For the reasons
discussed below, and in light of the determination that immediate
reform to the H-2A program's minimum wage policy, or the AEWRs, is
necessary to avoid widespread disruption across the U.S. agricultural
sector, the Department is amending its methodology to use the average
hourly gross wage reported by the BLS OEWS as the sole source of
[[Page 47929]]
wages for establishing two skill-based AEWRs that account for wage
differentials arising from qualifications contained in the employer's
job offer for all job opportunities under the H-2A program. Although
currently used to establish skill-based prevailing wages for all
agricultural and nonagricultural job opportunities in other
nonimmigrant and immigrant visa programs based on the collection of
employment and wage information from non-farm establishments such as
farm labor contractors, the Department is incorporating farm
establishments into the OEWS sampling methodology beginning in FY 2026.
Once data collection is initiated with the May 2026 semi-annual panel,
the expanded OEWS survey collection may start to reflect occupational
employment and wage information into the two skill-based AEWRs from
farm establishments on and after the May 2027 release. The Department
concludes that this change will ultimately provide more accurate wage
information based on a much larger and robust sample of the employer
establishments employing workers to perform agricultural related
services or labor covering a broader survey reference period across all
states where employers may seek labor certification to employ foreign
workers for temporary or permanent employment in the United States. The
adoption of the OEWS as the sole source of employment and wage
information will provide the Department with a single source of data,
within its control, that can consistently and more precisely establish
skill-based prevailing wages, including AEWRs, for all job
opportunities specific to each state, which the FLS is not capable of
reporting.
For many years, the Department has noted that wage data available
in the FLS and the OEWS represent the best information available for
determining the AEWRs in the H-2A program. The FLS collected employment
and wage information based on a survey of farm and ranch
establishments, which included any establishment with $1,000 or more in
annual agricultural sales (or potential sales), semiannually in April
and October.\91\ The survey was conducted primarily by mail or online,
with telephone follow-ups to obtain responses from nonrespondents, or,
if needed, to clarify written responses. Beginning with the July and
October 2021 timeframe, the FLS utilized a smaller national sample size
of over 16,000 operations to align with reductions in funding for the
statistical program and adjustments for declining survey participation
rates. The survey requested that employers provide, in aggregate and by
occupation, the total number of hired workers, the total hours worked
by all hired workers, and the total weekly gross wages paid to all
hired workers in each occupation during the second weeks of January,
April, July, and October. Gross wages were defined as the total amount
paid to workers before taxes and other deductions, including overtime,
bonus pay, workers' shares of social security and unemployment
insurance, and other in-kind payments (e.g., agricultural products
provided in lieu of wages), but not including benefits such as housing,
meals, or insurance. USDA used these data to estimate the employment,
average hours, and gross wages for a subset of six occupational
classifications covering field and livestock workers (combined) and
other hired workers in January and April (published in May) and in July
and October (published in November). Separate estimates were published
for each of the six individual occupations and for farm managers and
supervisors at the national level, but not for each state or farm
production region due to insufficient sample sizes. Further, because it
collects aggregate data related to the gross wages paid to all hired
workers in each occupation, as opposed to the gross wages paid to each
hired worker in each occupation during the reference period, the FLS is
not capable of reporting more precise wage estimates for any
occupation-specific wage distribution to approximate wage differentials
paid to U.S. workers similarly employed in a particular occupation and
state.
---------------------------------------------------------------------------
\91\ The NASS Agricultural Labor Survey is typically conducted
semi-annually in April and October, in all surveyed states except
California. For the current survey iteration, California labor data
were collected on a quarterly basis, through the California
Employment Development Department (EDD) program.
---------------------------------------------------------------------------
Separately, the BLS OEWS survey remains the largest ongoing
statistical survey program of the federal government, producing
employment and gross wage estimates for more than 830 SOC codes, and is
used as the primary wage source for establishing skill-based prevailing
wage determinations at local and state geographic areas in other
nonimmigrant and immigrant visa programs administered by the
Department.\92\ The OEWS survey primarily covers wage and salary
workers in non-farm establishments and does not include the self-
employed, owners and partners in unincorporated firms, household
workers, or unpaid family workers.\93\ Like the FLS, the survey is
conducted primarily by mail, with telephone follow-ups to
nonrespondents, or, if needed, to clarify written responses.\94\ Each
year, two semiannual panels of approximately 179,000 to 187,000 sampled
establishments are contacted, one panel in May and the other in
November. Thus, the OEWS employment and gross wage estimates are
constructed from a sample of about 1.1 million establishments collected
over a 3-year period, which allows the production of data at detailed
levels of geography, industry, and occupation and accounts for
approximately 57 percent of employers in the United States.\95\ OEWS
data are published annually with a May reference date. Wages are
defined as straight-time, gross pay, including piece rates, but, unlike
the FLS, excludes other forms of pay such as overtime, shift
differentials, and non-production or any year-end bonuses.\96\ Further,
because it collects the gross wages paid to each worker in each
occupation during the reference period, the OEWS can consistently
report more precise wage estimates for any occupation-specific wage
distribution to approximate wage differentials paid to U.S. workers
similarly employed in a particular occupation and state.
---------------------------------------------------------------------------
\92\ See, e.g., 20 CFR 655.731(a)(2)(ii)(A) (H-1B program, for
specialty (professional) workers) and 20 CFR 656.40(b)(2) (Permanent
Labor Certification program, for permanent employment of foreign
workers).
\93\ Although the OEWS has not historically covered farm
establishment, the survey was expanded in 2011 to cover farms as
part of the Green Goods and Services program but subsequently cut as
part of the sequestration due to the Budget Control Act of 2011. See
Stella D. Fayer, ``Agriculture: Occupational Employment and Wages,''
Monthly Labor Review, DOL, BLS, July 2014, 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.
\94\ Id.
\95\ 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).
\96\ The OEWS uses the term ``mean.'' However, for purposes of
this regulation the Department uses the term ``average'' because the
two terms are synonymous, and the Department has traditionally used
the term ``average'' in setting the AEWR from the FLS.
---------------------------------------------------------------------------
As explained through extensive rulemaking, the Department seeks to
rely on the best available information to carry out its statutory
mandate and has acknowledged that neither the FLS nor the OEWS are
perfect as both surveys
[[Page 47930]]
have shortcomings.\97\ In a March 2024 study comparing occupational
wage data collected across a wide array of government-based surveys,
the Congressional Research Service (CRS) affirmed the Department's
finding that the ``FLS and the OEWS are the only data sources currently
available that provide state- or region-level wage estimates for
agricultural occupations.'' \98\ In addition, in a survey of farm and
ranch establishments that directly hire workers, CRS similarly observed
that the FLS provides wage estimates only for field and livestock
worker (combined) occupations and does not reflect wages paid by farm
establishments for agricultural labor or services provided by workers
who are employed by farm labor contractors, or non-farm support
establishments, or any wage information for farm establishments in
Alaska or the U.S. territories. Regarding the OEWS, CRS noted that the
survey publishes wage estimates by occupation for a wide array of
local, state, and national geographic areas across all non-farm
industries, but does not publish wage estimates within the ``Crop
Production'' or ``Animal Production'' industries that are generally
covered by the FLS. However, with the discontinuation of the FLS by
USDA and based on a determination to establish skill-based AEWRs that
account for wage differentials arising from qualifications contained in
the employer's job offer for all job opportunities under the H-2A
program, the Department has determined that the OEWS survey is the best
available alternative source of employment and wage information to use
in determining the AEWRs. Accordingly, the Department has made
corresponding revisions to 20 CFR 655.120 by removing references to the
USDA FLS.\99\ The Department will use the OEWS as the sole wage source
for determining two skill-based AEWRs for all SOC codes, including
those covered by the field and livestock workers (combined) category
and those not included like first-line supervisors of farm workers or
construction laborers where the duties, skills, and qualifications are
the same or substantially similar to U.S. workers employed by non-farm
establishments.
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\97\ See 73 FR at 7713 where the Department notes that ``the FLS
and the OES survey are the leading candidates among agricultural
wage surveys potentially available to the Department to set AEWRs.
Neither survey is perfect. In fact, both surveys have significant
shortcomings. On balance, however, the Department has concluded that
in light of the current prevalence of illegal aliens in the
agricultural labor market, AEWRs derived from OES survey data will
be more reflective of actual market wages than FLS data, and thus
will best protect the wages and working conditions of U.S. workers
from adverse effects.''
\98\ The CRS study compared the agricultural wage data currently
used in calculating the AEWR with the wage data available from the
Agricultural Resources Management Survey (ARMS), the Census of
Agriculture (COA), the American Community Survey (ACS), the Current
Population Survey (CPS), the Quarterly Census of Employment and
Wages (QCEW), the National Economic Accounts, and the National
Agricultural Workers Survey (NAWS). See Elizabeth Weber Handwerker,
Measuring Wages in the Agricultural Sector for the H-2A Visa
Program, Congressional Research Service, Report No. R47944 (March 5,
2024). Available at: https://www.congress.gov/crs-product/R47944.
\99\ The Department has acknowledged in prior rulemaking that
USDA controlled administration of the FLS, suspended the survey
several times in the past, and retained discretion to unilaterally
revise the survey methodology. See United Farm Workers v. Perdue,
No. 1:20-cv-01452-DAD-JLT, 17-18 (E.D. Cal. Oct. 28, 2020) (citing
USDA-DOL MOU at 2-6). The possibility of future instability in
administration of the FLS, was one reason the Department decided to
leverage the OEWS as a secondary wage source for field and livestock
workers (combined) job opportunities. See 88 FR at 12769 (Adopting
proposal to ``use the OEWS to determine a statewide AEWR'' for field
and livestock workers ``in the unanticipated circumstance that the
FLS survey becomes unavailable (e.g., suspension of the survey) . .
.'').
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In this IFR and in light of the determination by USDA to
discontinue the FLS based on its own statutory authority, the
Department affirms the strengths of using the OEWS as an authoritative
source of employment and wage information for determining skill-based
AEWRs. For many reasons, the Department has determined that the OEWS
remains the most comprehensive, reliable, and stable source of
occupational employment and wage information available for determining
skill-based AEWRs in the H-2A program. First, as use of the H-2A
program has broadened to include on-farm and off-farm employment, the
multisector reach of the OEWS survey does a better job of accurately
reflecting market wage rates for occupations where workers are
primarily employed in jobs outside the field and livestock workers
(combined) category, such as first-line supervisors, heavy truck
drivers, and construction workers because, as the Department previously
concluded, these occupations ``inherently include work both in and
outside the agricultural sector.'' \100\
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\100\ Id. at 12770.
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Second, unlike the FLS, the capability of the OEWS to consistently
aggregate wage estimates at a statewide level will better protect
against the potential for depressive wage effects, if any, that may
occur due to large numbers of nonimmigrant agricultural workers
employed in more concentrated local areas within a state. Specifically,
when discussing its preference for using the OEWS because the survey
reports wages for each occupational classification at a geographic
level above a specific crop activity, the Department concluded that an
``AEWR based on an occupational classification that accounts for
significantly different job duties but remains broader than a
particular crop activity or agricultural activity in a local area may
better protect U.S. workers.'' \101\ Thus, for many decades, the
Department ``consistently has set statewide AEWRs rather than substate
. . . AEWRs because of the absence of data from which to measure wage
depression at the local level'' and because use of surveys reporting
data at a broader geographic level ``immunizes the survey from the
effects of any localized wage depression that might exist.'' \102\ As
previously discussed regarding its sampling structure and methodology,
the OEWS is capable of producing employment and wage estimates
consistently at the statewide level and for any particular occupation
or group of occupations, which more precisely estimates the wages paid
of U.S. workers similarly employed in that state. Conversely, the FLS
cannot report wage estimates for each state, except for California,
Florida, and Hawaii, and cannot report wage estimates at the state or
regional levels for any occupation outside the field and livestock
worker (combined) category of occupations. Therefore, the Department
concludes that the more precise statewide data available from the OEWS,
whether for a particular occupation or group of occupations, better
protects the wages of U.S. workers similarly employed where employers
may be seeking to employ H-2A workers in that same occupation(s) within
the state.
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\101\ 84 FR at 36182 (citation omitted).
\102\ 75 FR at 6895.
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Third, the OEWS methodology incorporates a much larger sample size
of establishments (1.1 million total non-farm establishments) \103\ and
generates higher survey response rates (approximately 65 percent),\104\
as compared to smaller sample size (estimated 16,000 total farm
establishments) and lower response rates (approximately 44 percent) of
the FLS, which provides greater confidence to the Department in the
accuracy of the employment and wage estimates produced by the BLS.
Fourth, due to its larger sample size and time series panel
methodology, the OEWS has the capability of consistently providing
employment and wage estimates by SOC code at a state, regional, and
national level. Conversely, as mentioned previously, the FLS can only
produce
[[Page 47931]]
employment and wage estimates by SOC code at a national level due to
its significantly reduced sample size and methodology.\105\ Fifth, due
to its robust capacity to produce estimates at broad geographic levels
spanning a three-year aggregated timeseries collection, the OEWS data
are more reliable, representative, and generally experience lower rates
of volatility on a year-over-year basis. While the FLS calculates
annual findings from quarterly estimates of data collected during one
calendar year cycle, each set of OEWS estimates used across other
nonimmigrant and immigration visa programs is calculated from six
panels of survey data collected over three years, which tends to
moderate year-over-year fluctuations in wage rates.
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\103\ Id. at 6, 10.
\104\ Handwerker at 6.
\105\ Id. (Noting the FLS was expanded briefly from 2018-2020 to
provide occupation-specific wages at a smaller geographic scale and
with expanded sample sizes, but USDA reverted to smaller sample
sizes and the prior survey scope after suspending the survey
entirely in 2020).
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Sixth, unlike the FLS, the OEWS survey produces wage estimates
based on straight-time, gross pay, and excludes monetary compensation
related to overtime pay, on-call pay, severance pay, shift
differentials, year-end and other nonproduction bonuses, and employer
costs for supplementary benefits (e.g., uniform, tuition). As multiple
states in recent years have enacted legislation requiring overtime pay
for agricultural workers, employers have expressed concerns that the
FLS is vulnerable to producing artificially high average wages because
overtime pay and other forms of premium pay are not being excluded from
the collection of gross compensation data from farm establishments.
Thus, by adopting the OEWS as the wage source for estimating skill-
based AEWRs, the Department is seeking to address this concern while
achieving greater consistency in the computation of average hourly wage
rates in the H-2A program with those already used in temporary and
permanent visa programs where overtime pay is excluded from determining
prevailing wages.
And finally, although it does not primarily survey farm
establishments, farm labor contractors, which are covered by the OEWS,
are increasingly utilized by agricultural employers, to employ workers
to provide agricultural labor or services similar to that of workers
employed by fixed-site agricultural employers thus making use of the
OEWS data important to determining representative, market-based wages.
Agricultural labor contractor employment has grown in recent years
\106\ and H-2 labor contractors (H-2ALCs) represent an increasing share
of the H-2A worker positions certified by the Department.\107\ For
example, from FY 2020 through FY 2023, the Government Accountability
Office (GAO) found that H-2ALCs ``accounted for 42 percent of the jobs
approved during the period'' in the H-2A program \108\ and the USDA
found that ``the FLC share of H-2A workers increased from 15 percent to
42 percent from FY 2010 to FY 2019.'' \109\ FLC employment is
increasingly common in specific sectors, such as the vegetable crop
sector (40%), and fruit and nut crop sector (57%) \110\ and data shows
``vegetable and melon farming or fruit and tree nut farming accounted
for most of the approved H-2A applications,'' according to GAO and USDA
research.\111\ FLCs may also be more commonly employed in support of
smaller farms, as ``smaller farms turn to FLCs because H-2A visa
programs can be difficult to navigate'' for these employers.\112\ Based
on a review of the Department's more recent public H-2A labor
certification records for FY 2024 and FY 2025, H-2ALCs continued to
account for a significant percent of all H-2A jobs certified as more
than 163,200 of the 379,300 jobs, or 43 percent of the total, were
approved during FY 2024 for H-2ALCs. In addition, from October 1, 2024,
through June 30, 2025, more than 134,200 of the 317,400 H-2A jobs
certified, or 42 percent of the total, were approved during FY 2025 for
H-2ALCs.\113\ In comparison, the now-discontinued FLS suffered from the
flaw of not surveying at all the large proportion of agricultural labor
that is supplied by FLCs.\114\
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\106\ Farm Labor (Jan. 8, 2025). USDA (Noting From 2013 to 2023,
agricultural employment increased most ``in crop support services
(which added about 17,400 jobs, a 6 percent increase). Available at:
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.
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The Department's concern expressed in prior rulemaking that the
OEWS, as currently administered, may not survey a sufficient cross-
section of agricultural workers to represent market-based wages,\115\
is being addressed outside this IFR, as the Department will ensure
long-term stability in determining the
[[Page 47932]]
AEWRs using a more comprehensive OEWS data set based on a more robust,
accurate, and reliable set of wage data from farm establishments.
Specifically, the Department is working collaboratively with USDA, due
to its expertise in identifying farm establishments, to initiate
expansion of the OEWS survey universe of employers in FY 2026 by
incorporating employers in key agricultural industries, such as crop
and animal production sectors, into its semi-annual sampling
methodology and model estimation procedures. As the semi-annual panels
begin to incorporate employment and wage estimates from these farm
establishments on and after May 2026, the OEWS survey will increasingly
strengthen its ability to provide more accurate and reliable
information to the Department and the general public on the employment
and average wages paid to U.S. workers similarly employed in
agricultural related occupations. Taking into consideration the
decision to establish more precise skill-based AEWRs for each state,
the strengths of the OEWS to produce occupation-specific wages that
accounts for wage differentials for every state, and planned expansion
of the survey to incorporate farm establishment data into its time
series methodology, the Department concludes that the resulting
employment and wage estimates will better reflect wages paid to U.S.
workers performing agricultural related labor or services across all
types of establishments and covering a broad geographic area at the
state level, leading ultimately to more comprehensive and accurate wage
data that cannot be reported by the FLS.
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\115\ See e.g., 75 FR at 6899.
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As previously discussed, Congress has delegated broad discretion to
the Department in determining the sources and methods that best allows
it to meet its statutory mandate, while striking a reasonable balance
between the statute's competing goals of providing employers with an
adequate supply of legal agricultural labor and protecting the wages
and working conditions of workers in the United States similarly
employed. For all the reasons previously stated, the Department
concludes that the policy decision to use the unique strengths of the
OEWS for establishing skill-based AEWRs, which are not available
through the FLS, and inclusive of its planned expansion to collect
employment and wage information from farm establishments, will provide
one comprehensive source of more accurate and representative market-
based wages, based on samples of employers and workers covering all
agricultural related occupations and types of establishments, thereby
better approximating the actual wages of U.S. workers similarly
employed based on the duties and qualifications associated with the
agricultural work being performed.
B. The Department Will Determine the AEWRs at Two Skill Levels To
Better Reflect the Average Wages Paid to U.S. Workers Similarly
Employed
As discussed in detail below, the Department will determine the
AEWRs using the best available data from the OEWS that reasonably
reflects labor market dynamics and most closely approximates the
average wages earned by U.S. workers performing similar work and
possessing the same or substantially similar qualifications (e.g., job
requirements, experience, tools) as those employers expect of H-2A
workers.
Under revisions adopted in this IFR at 20 CFR 655.120(b)(1)(i) and
(ii) and (b)(2), the Department will determine the AEWRs for H-2A job
opportunities using the annual average hourly gross wage in the U.S.
state or territory according to two skill or qualification levels:
Skill Level I (Entry-Level) and Skill Level II (Experience-Level). A
Skill Level I AEWR is associated with job offers containing
qualifications commensurate with entry-level positions where workers
need no formal education or specialized training credentials. In
addition, employers typically require no or very little work-related
experience under the Occupational Information Network (O*NET) \116\
system (e.g., up to 2 months of related work experience cultivating
diversified vegetable crops) or, alternatively, may require a short
demonstration (e.g., several weeks of on-the-job training) on how to
perform the work by a more experienced employee, lasting anywhere from
a few days to a few weeks. Employers seeking employees for this level
of position require them to follow instructions from a supervisor or
team leader on the employer's agricultural methods and practices, use
common equipment and tools to successfully perform the work, and help
others as part of a work crew. Work performed by these employees is
closely monitored, tracked, and assessed for quality, accuracy, and
production results. In accordance with new paragraph (b)(2)(i), a Skill
Level I AEWR will be computed as the average hourly gross wage paid to
the lower one-third of all workers in the five SOC codes comprising the
field and livestock workers (combined) category or, for occupations
outside of that category, the average hourly gross wage paid to the
lower one-third of all workers in the specific SOC code assigned to the
employer's job opportunity. A Skill-Level I AEWR is computed at the
equivalent of the 17th percentile of the occupational wage
distribution, which is similar to the skill-based prevailing wages for
other nonimmigrant and immigrant visa programs administered by the
Department.
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\116\ The O*NET system was created for the general public to
provide broad access to the O*NET database of occupational
information. O*NET is a database of information on skills,
abilities, knowledges, work activities, and interests associated
across more than 820 occupational classifications based on the 2018
version of the Standard Occupational Classification system. This
information can be used to facilitate career exploration, vocational
counseling, and a variety of human resources functions, such as
developing job orders and position descriptions and aligning
training with current workplace needs. Additional information on the
O*NET system is available at https://www.onetonline.org (last
visited August 21, 2025).
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A Skill Level II AEWR is associated with job offers containing
qualifications commensurate with experience-level or qualified
employees who possess, either through education, training, or
experience, demonstrated skills or knowledge to perform the work
covering the SOC code(s). Depending on the occupational classification,
these positions may normally require some formal education or training
credentials or certificates. In addition, employers typically require
work-related experience at a level that is normal for the occupation
under the O*NET system (e.g., 3 months of related work experience
harvesting apples) and generally do not require a short demonstration
on how to perform the work by a more experienced employee. Employers
who hire employees into this level of position may also expect workers
to perform moderately complex tasks (e.g., harvesting ``first pick''
apples for firmness, color, and placement on the tree) and follow
instructions from a supervisor or team leader on the employer's
agricultural methods and practices, use common equipment and tools to
successfully perform the work, and help others as part of a work crew.
Work performed by these employees is not as closely monitored as
employees in Skill Level I, but production may still require some level
of tracking and assessment of quality when immediate delivery is to
market. In accordance with new paragraph (b)(2)(ii), a Skill Level II
AEWR will be computed as average hourly gross wage paid to all workers
in the five SOC codes comprising the field and livestock
[[Page 47933]]
workers (combined) category or, for occupations outside of that
category, the average hourly gross wage paid to all workers in the
specific SOC code assigned to the employer's job opportunity. A Skill-
Level II AEWR is computed at the equivalent of the 50th percentile of
the occupational wage distribution, which is similar to the skill-based
prevailing wages for other nonimmigrant and immigrant visa programs
administered by the Department.
The description and application of each skill level adopted in this
IFR is based on the totality of the circumstances of an employer's job
offer and designed to be consistent with skill-based levels required
under the INA and used by the Department in its prevailing wage
determinations for employers seeking to hire H-1B temporary
nonimmigrant workers and permanent immigrant workers, as discussed
further below.\117\ In other words, if this same agricultural employer
sought labor certification from the Department to sponsor a foreign
worker for permanent year round work to support its farming operation,
the Department would conduct a similar assessment of the qualifications
contained in the employer's job offer and assign a market-based wage
that best approximates the average wage paid to U.S. workers similarly
employed in the geographic area. The Department concludes employers
seeking temporary nonimmigrant workers under the H-2A visa
classification should receive an AEWR determination that also takes
into account the qualifications of the employer's job offer to better
effectuate the requirement to, protect the wages of U.S. workers
similarly employed and more closely align the wage standard in the H-2A
program with the wage standards in other employment-based immigration
programs which use skill-based wage levels.\118\
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\117\ See Section 212(p)(4) of the INA stating, in pertinent
part, that ``[w]here the Secretary of Labor uses, or makes available
to employers, a governmental survey to determine the prevailing
wage, such survey shall provide at least 4 levels of wages
commensurate with experience, education, and the level of
supervision.'' Although this provision was enacted in the context of
the H-1B temporary nonagricultural visa classification, and also
applies to the PERM immigrant visa program, it is the only paragraph
in Section 212(p) that does not reference any specific immigration
programs to which it applies, and there is no legislative history
indicating that it was meant to apply only to the H-1B program. For
more detailed information regarding the four skill levels utilized
by the Department, please see Employment and Training Administration
Prevailing Wage Determination Policy Guidance Nonagricultural
Immigration Programs, Revised November 2009 located at 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.
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For the reasons discussed below, and after the appropriate SOC
code(s) are assigned to the job opportunity, the State Workforce Agency
(SWA) and OFLC Certifying Officer (CO) will make an AEWR determination
for the U.S. state or territory using one of two skill levels based on
a comparison of the qualifications (e.g., education, and training)
contained in the employer's job offer that it expects employees to
possess for acceptable work performance. Although the vast majority of
certified H-2A job opportunities are concentrated in the five field and
livestock worker (combined) occupational category, the market for
agricultural labor or services is far more diversified and covers a
broad spectrum of occupations with differing degrees of job
qualifications that generate different levels of wage compensation.
Despite a common stereotype that agricultural jobs are ``unskilled''
and typically do not require formal education or training credentials
or certificates like the specialty occupations in the H-1B temporary
nonimmigrant and PERM immigrant program, the Department has previously
noted, as far back as 2008, that the ``farm labor market is not a
monolithic entity,'' but is comprised of ``a number of occupations and
skills'' distributed across ``a matrix of markets'' and a ``spectrum of
occupations, skill or experience levels . . .'' \119\ In fact, based on
a review of H-2A labor certification records for FY 2024, the
Department issued labor certifications across more than 60 different
SOC codes containing a wide array of qualifications ranging from crop
and nursery work to supervisors, animal trainers, equipment mechanics
and technicians, heavy truck drivers, and commercial pilots.
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\119\ 73 FR at 8550.
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The methodology adopted in this IFR also addresses some of the more
substantial concerns expressed by users of the H-2A program--
agricultural employers and associations--who have long contended that
the AEWR cannot be an accurate reflection of market wages paid to
similarly employed workers if the Department fails to differentiate
wage data based on the ``level of skill or experience required for a
position.'' \120\ Many stakeholders have urged the Department to adopt
a tiered wage system, accounting for ``experience, skill,
responsibility, and difficulty variations within each occupation,''
similar to the system mandated by Congress in the H-1B nonimmigrant
program.\121\ The Department agrees and acknowledges that it is
generally accepted that differences in wages among workers within a
given occupation can be attributed to a number of characteristics and
qualifications such as education, work experience, complexity of tasks,
training, and requirements like licensure, as well as characteristics
like union v. non-union and full-time v. part-time or temporary.\122\
While it is administratively infeasible to precisely
[[Page 47934]]
pinpoint every reason that workers within a given occupation receive
significantly different pay, the Department concludes that the
existence of wage differences can be attributed, to a large degree, to
these characteristics and qualifications possessed by incumbent workers
performing work within a given occupation. This is supported by the
Department's extensive experience assessing the duties and
qualifications of job opportunities, including those from employers in
the agricultural sector, applying for labor certification to employ
foreign nationals temporarily under the H-1B visa classification or in
permanent employment in the United States. Specifically, for more than
20 years, the Department has used one of four skill-based wage levels
for a given occupational classification based on a comparison of the
qualifications contained in the employer's permanent or temporary H-1B
job offer related to the occupational duties or tasks, knowledge,
skills, and specific vocational preparation (i.e., education, training,
and experience) generally required of prospective applicants for
acceptable performance in the position. A detailed description of the
tasks, knowledge, and skills in the employer's job opportunity,
including level of complexity, judgement, supervision and understanding
required to perform the duties, help determine the appropriate skill-
based prevailing wage for these job opportunities. Further, information
contained in the O*NET related to education, and training provides
guidance in determining whether the job offer is for an entry-level,
qualified, experienced, or fully competent employees; each of which
corresponds to higher skill-based wage levels as minimum qualifications
in the employer's job offer increases.
---------------------------------------------------------------------------
\120\ 75 FR at 6899.
\121\ Id. at 6900.
\122\ See, e.g., Introducing Modeled Wage Estimates by Grouped
Work Levels, U.S. DOL, BLS (noting ``wages tend to increase along
with the progression in work level'' necessitating information about
``differences in pay for entry, intermediate, and experienced work
levels.''). Available at: 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-factsheet.htm; Torpey, Elka, Same Occupation,
Different Pay: How Wages Vary (2015), BLS (``Large differences in
wages may be the result of a combination of factors, such as
industry of employment, geographic location, and worker skill.'')
Available at: https://www.bls.gov/careeroutlook/2015/article/wage-differences.htm; Learn More, Earn More: Education Leads to Higher
Wages, Lower Unemployment, BLS. Available at: https://www.bls.gov/careeroutlook/2020/data-on-display/education-pays.htm.
---------------------------------------------------------------------------
Additionally, the BLS has noted that work experience and training
contributes to wage differentials, with ``experienced workers usually
earn[ing] more than beginners,'' and recent data suggests work
experience may be a significant factor in within-occupation wage
differentials in agriculture.\123\ Wages may also differ within an
occupation based on required skills and the wage may increase where
there is a requirement for ``in-demand skills . . .'' \124\
Additionally, workers who ``hold professional certification or
licensure may earn more than other workers in the same occupation . .
.'' \125\ Within a particular occupation, and even with the same
employer, wages may also differ based on complexity of tasks and level
of responsibility.\126\ Even in lesser skilled occupations, the
Department believes these factors can explain much of the identified
within-occupation wage differentials.\127\
---------------------------------------------------------------------------
\123\ Torpey (2015) (``Large differences in wages may be the
result of a combination of factors, such as industry of employment,
geographic location, and worker skill.''). Available at: https://www.bls.gov/careeroutlook/2015/article/wage-differences.htm;
Findings from the National Agricultural Workers Survey (NAWS) 2021-
2022: A Demographic Employment Profile of United States Crop Workers
(Sept. 2023), 28. U.S. DOL-ETA (A survey of agricultural workers
indicated ``[h]ourly wages increased with respondents' number of
years working for their current employer'' and varied from ``$13.72
per hour'' for workers with 1-2 years of experience in the job to
``$15.56 per hour'' for workers with 11 or more years in the job.).
Available at: https://www.dol.gov/sites/dolgov/files/ETA/naws/pdfs/NAWS%20Research%20Report%2017.pdf; Sullivan, Paul, Empirical
Evidence on Occupation and Industry Specific Human Capital (Jun.
2010), Labour Economics, 17:3 (In ``occupations such as craftsmen .
. . workers realize a 14% increase in wages after five years of
occupation specific experience . . . sales workers . . . realize
large wage gains as they accumulate general work experience.'').
Available at: https://www.sciencedirect.com/science/article/abs/pii/S0927537109001286?via%3Dihub/.
\124\ Id.; Levenson, Alec & Zoghi, Cindy, The Strength of
Occupation Indicators as a Proxy for Skill (Mar. 2007), 2, 8. BLS
(``[T]here is considerable within occupation variation in skills . .
. , there are differences among workers in their ability to perform
tasks of high complexity, and there are differences among jobs in
the level of task complexity and responsibility bestowed on the
worker.''). Available at: https://www.bls.gov/osmr/research-papers/2007/pdf/ec070030.pdf.
\125\ Id.
\126\ See, e.g., Torpey (2015)(Stating ``[j]obs for a specific
occupation often have similar position descriptions, but individual
tasks may vary'' and ``jobs involving more complex tasks or greater
responsibility may have higher wages than those that don't . . .'');
Autor, David H. and Handel, Michael J. (2013), Putting Tasks to the
Test: Human Capital, Job Tasks and Wages, National Bureau of
Economic Research (``Job tasks . . . vary substantially within and
between occupations, are significantly related to workers'
characteristics, and are robustly predictive of wage differentials
both between occupations and among workers in the same
occupation.''). Available at: https://ideas.repec.org/a/ucp/jlabec/doi10.1086-669332.html.
\127\ National Compensation Survey (May 2013), 60. BLS (Stating
job levels for blue collar jobs may increase progressively based on
factors like required knowledge of ``rules, materials, processes,
procedures, operations, and tools necessary'' to perform tasks like
``fabricat[ing], install[ing], repair[ing], maintain[ing] . . .''
equipment and should be increased most significantly when the job
requires, for example, knowledge of complex procedures and methods
``gained through job experience to permit independent performance of
nonstandard assignments . . .'' or requires ``specialized training
or experience . . .''). Available at: https://www.bls.gov/mwe/factsheets/ncs-leveling-guide-for-evaluating-your-firms-jobs-and-pay.pdf.
---------------------------------------------------------------------------
Within the agriculture sector, the amount of time spent working on
a farm and the number of years of experience performing agricultural
work have a positive correlation to the average wages or earnings
received.\128\ Based on a review of the evidence available, the
Department concludes that wage differentials within a given
agricultural occupation do exist, and that varying degrees of work-
related experience among employed U.S. agricultural workers are
reflected by differences in wages paid to such workers by employers.
For example, the most recent data available from the NAWS for 2021-2022
indicates that ``[h]ourly wages increased with respondents' [crop
workers] number of years working for their current employer.'' The
report noted that workers ``who had been with their current employer 1
to 2 years earned an average of $13.72 per hour, those working for
their current employer 3 to 5 years earned an average of $14.53 per
hour, and those with 6 to 10 years earned an average of $14.81 per hour
. . .'' and workers ``who had worked for their current employer 11
years or more earned the highest hourly wage, an average of $15.56 per
hour.'' \129\ Additionally, the report indicates that 23 percent of
workers had worked at least 11 or more years with their current
employer and the average number of years worked with the current
employer was 8 years.\130\
---------------------------------------------------------------------------
\128\ Findings from the National Agricultural Workers Survey
(NAWS) 2021-2022: A Demographic Employment Profile of United States
Crop Workers (Sept. 2023), at 28. U.S. DOL ETA. Available at:
https://www.dol.gov/sites/dolgov/files/ETA/naws/pdfs/NAWS%20Research%20Report%2017.pdf.
\129\ Id. at 28.
\130\ Id. at 32.
---------------------------------------------------------------------------
This suggests that relying on unsegmented aggregate OEWS data
(i.e., the arithmetic mean of all hired workers in a given occupational
wage distribution) would tend to overstate wages for similarly employed
American agricultural workers with less experience and understate wages
for similarly employed American agricultural workers with more
experience. Within the OEWS data set that covers a far larger sample
size of employer establishments than both the NAWS and FLS discussed
previously, BLS publishes an occupational profile containing the
average wage paid to all workers in the SOC code and shows a
distribution of wages in percentiles, which provides information on the
spread of wages based on the percentage of workers earning at or below
a given percentile. The wages presented at different points within an
occupational wage distribution positively correlate to important worker
characteristics such as education and experience. As the BLS describes,
``someone new to the field may expect wages near the 10th or 25th
[[Page 47935]]
percentile, whereas those with more experience and education could
expect wages near the 75th or 90th percentile.'' \131\ To further
illustrate the point that material wage differentials exist within
agricultural occupations, the table below displays the national average
OEWS-based hourly wage rates associated with the top 10 SOC codes
typically certified in the H-2A program at the 10th, 25th, 50th, and
75th percentiles in the occupational wage distribution.
---------------------------------------------------------------------------
\131\ See How Much Could I Be Earning? Using Occupational
Employment and Wage Statistics Data During Salary Negotiations, BLS,
https://www.bls.gov/oes/earnings.pdf.
----------------------------------------------------------------------------------------------------------------
National average hourly wage distribution, May 2024
---------------------------------------------------------------
Occupation title (SOC code) 10th 25th 50th 75th
Percentile Percentile Percentile Percentile
----------------------------------------------------------------------------------------------------------------
Farmworkers and Laborers, Crop, Nursery, and $15.51 $16.48 $17.16 $18.73
Greenhouse (45-2092)...........................
Agricultural Equipment Operators (45-2091)...... 15.02 17.62 20.47 23.41
Farmworkers, Ranch, and Aquacultural Animals (45- 13.03 15.01 17.38 21.29
2093)..........................................
Heavy Truck and Tractor-Trailer Drivers (53- 18.58 22.71 27.62 31.50
3032)..........................................
Construction Laborers (47-2061)................. 16.44 18.32 22.47 28.32
Shuttle Drivers and Chauffeurs (53-3053)........ 13.21 15.13 17.63 21.40
Graders and Sorters, Agricultural Products (45- 14.66 16.13 17.03 18.28
2041)..........................................
Helpers--Carpenters (47-3012)................... 15.16 17.24 20.00 22.49
Helpers--Installation, Maintenance and Repair 13.83 16.23 18.68 22.40
Workers (49-9098)..............................
Packers and Packagers, Hand (53-7064)........... 13.01 15.13 17.10 19.69
----------------------------------------------------------------------------------------------------------------
Upon review, the data in the table clearly demonstrates that
material wage differentials are present in both common higher-skilled
agricultural SOC codes, such as heavy truck and tractor-trailer drivers
and first-line supervisors of farm workers, and the relatively lower-
skilled occupations that make up the five most common field and
livestock workers (combined) category of occupations, which includes
Farmworkers and Laborers, Crop, Nursery and Greenhouse Workers (45-
2092), Farmworkers, Farm, Ranch, and Aquacultural Animals (45-2093),
Agricultural Equipment Operators (45-2091), Packers and Packagers, Hand
(53-7064), and Graders and Sorters, Agricultural Products (45-2041).
For example, the wage estimates for heavy truck drivers (SOC 53-3032)
range from $22.71 per hour at the 25th percentile to $27.62 per hour at
the 50th percentile, or mean, of all workers in the occupational
distribution. The wage differential is significant at more than $4.91
per hour between these two wage measurement points in the occupational
wage distribution. In the field and livestock worker (combined)
category of occupations, the wage data at these same percentiles
indicates more narrow wage differentials for crop farmworker occupation
(45-2092) ranging from $16.48 to $17.16 per hour, with a differential
of $0.68 per hour; wages for agricultural equipment operators (45-2091)
ranging from $17.62 to $20.47, with a differential of $2.85 per hour;
and wages for ranch and aquacultural farmworkers (45-2093) ranging from
$15.01 to $17.38 per hour, with a differential of $2.37 per hour.
The Department also notes that evidence exists that wage
differentials are present at a statewide geographic level and even for
the most common occupation certified in the H-2A program, Farmworkers
and Laborers, Crop, Nursery, and Greenhouse (45-2092). As an example,
the table below displays the statewide average OEWS-based hourly wage
rates associated with SOC code 45-2092 for the top 10 states of
certified employment in the H-2A program at the 10th, 25th, 50th, and
75th percentiles in the occupational wage distribution.
----------------------------------------------------------------------------------------------------------------
Statewide average hourly wage distribution farmworkers and
laborers, crop, nursery, and greenhouse (45-2092)
U.S. State of certified employment ---------------------------------------------------------------
10th 25th 50th 75th
Percentile Percentile Percentile Percentile
----------------------------------------------------------------------------------------------------------------
Florida......................................... $12.64 $13.36 $14.32 $16.19
Georgia......................................... 12.00 13.37 13.94 17.96
California...................................... 16.34 16.72 17.20 18.63
Washington...................................... 16.44 16.67 17.83 21.00
North Carolina.................................. 13.28 14.44 16.20 17.31
Michigan........................................ 13.94 15.58 17.52 18.80
Louisiana....................................... 10.96 12.86 14.50 16.06
Texas........................................... 11.10 12.97 15.28 16.76
Arizona......................................... 14.84 16.21 16.43 17.45
New York........................................ 15.78 17.20 18.93 21.98
----------------------------------------------------------------------------------------------------------------
Upon review, the data in the table above also shows that wage
differentials are present in the most common agricultural occupation
certified under the H-2A program. Across the top 10 states of intended
employment for H-2A workers, the average wage differential between the
25th and 50th percentiles for the Farmworkers and Laborers, Crop,
Nursery, and Greenhouse occupation is approximately $1.28 per hour.
These wage differentials are more salient in most, but not all, of the
top 10 states. For example, the wage estimates for this occupation in
Texas range from $12.97 per hour at the 25th percentile to $15.28 per
hour at the 50th percentile, or mean, of all workers in the
occupational distribution. The wage differential is significant at more
than $2.31 per hour between these two wage measurement
[[Page 47936]]
points in the occupational wage distribution. In addition, a wage
differential of more than $1.00 per hour is also present for workers
performing similar agricultural work within the states of Washington,
North Carolina, Michigan, Louisiana, and New York. However, Arizona
shows a narrower wage differential of $0.22 per hour where wage
estimates showed $16.21 per hour at the 25th percentile and $16.43 per
hour at the 50th percentile or mean.
Thus, based on the broad distribution of wages paid to U.S. workers
similarly employed across the most common occupations and geographic
areas certified under the H-2A program, the Department can reasonably
conclude that material wage differences within agricultural occupations
exist and are positively correlated with differences in the
characteristics and qualifications of incumbent workers employed by
employers in these occupations. Accordingly, continued use of a single
average hourly wage for all workers for a given occupation is not
appropriate when the employer's need for the agricultural labor or
services to be performed does not require qualifications commensurate
with the average of all incumbent workers employed who may possess
eight or more years of experience. In other words, imposing a single
AEWR computed based on all workers paid within the occupation,
regardless of the qualifications contained in an employer's job offer,
is not sufficiently precise to reflect market-based wages paid to U.S.
workers similarly employed, resulting in a wage floor that is either
artificially too high or too low in relation to the nature of the
employer's qualifications. As previously discussed, due to its sampling
size and methodology that allows for collecting employment and gross
wages paid to each worker in each occupation during the reference
period, the OEWS can consistently report more precise wage estimates
for any occupation-specific wage distribution to approximate wage
differentials paid to U.S. workers similarly employed in a particular
occupation and state, which the FLS cannot report at any level.
When AEWRs are artificially set too far above market conditions in
relation to the agricultural duties and qualifications required by
employers, the resulting increases in production costs can harm U.S.
workers similarly employed as employers scale down or, worse yet, shut
down operations and become ``priced out'' of participating in the H-2A
program. Conversely, when the AEWRs are set artificially below market
conditions in relation to the minimum job qualifications required by
employers, U.S. workers similarly employed may be harmed by employers
choosing not to hire qualified and eligible U.S. workers in favor of H-
2A workers, which may lead to requiring that U.S. workers accept below-
market wages as a condition of employment.
The Department notes that the policy rationale for adopting two
skill levels is to approximate, as accurately as possible and using the
best available information, the average of wages paid to U.S. workers
similarly employed in the occupation and geographic area based on the
qualifications contained in the employer's job offer for which the
services of H-2A workers are being requested for temporary agricultural
labor certification. When the average wages better reflect these market
conditions, they do not represent below-average AEWRs. Rather, these
AEWRs reflect the actual average wages that are prevailing in the
occupation and geographic area for that particular kind of job. The
Department's use of a single AEWR for work performed within a
particular occupation or category of occupations, regardless of
qualifications, fails to account for the fact that individual jobs
within a broad occupational classification require relatively more or
less experience and skill to perform than others and may adversely
affect U.S. workers who are similarly employed performing such jobs.
The Department also concludes that adoption of this AEWR
methodology will address concerns raised in the recently settled Teche
Vermilion litigation regarding the 2023 AEWR Final Rule's methodology
under 8 U.S.C. 1188(a)(1)(B) and the lack of clarity or nuance
regarding the way the Department determines whether a ``H-2A job . . .
ha[s] sufficient common characteristics with a non-H-2A job'' such that
``the wages and working conditions of one job impact the wages and
working conditions of the other.'' \132\ As previously explained, the
Court noted the INA ``does not require that DOL base the AEWR on
average wage rates for jobs or occupations that are the same or
identical,'' but does require ``that the jobs be sufficiently
comparable that the wage rates and working conditions of the H-2A job
at issue can adversely impact the wage rates and working conditions of
domestic workers employed in the non-H-2A job,'' thereby assuring the
AEWR ``correlate[es] to whether the employment of an H-2A worker
adverse[ly] impacts similarly employed domestic workers.'' \133\ In
considering whether workers are similarly employed when establishing
AEWRs, the court concluded the Department should consider factors like
duration of time spent in duties, the work environment, the totality of
required tasks, and required credentials to determine whether the jobs
have ``sufficient common characteristics'' or if ``the nature of the
work, qualifications, and experience required for jobs performed by two
groups of workers are sufficiently different . . .'' \134\ The Court
issued an injunction in that case because it determined that plaintiffs
were likely to succeed on their claim that the Department exceeded its
statutory authority because it failed to explain how non-agricultural
heavy truck drivers and agricultural sugar cane haulers in Louisiana
are similarly employed. Specifically, the court thought that the
Department failed to consider whether there are ``material
difference[s] between the `work performed, skills, education, training,
and credentials' between the jobs . . .'' \135\ and whether ``the
nature of the work, qualifications, and experience required for jobs
performed by two groups of workers are sufficiently different,'' such
that ``the wages and working conditions of one group of workers is not
likely to adversely affect the wages and working conditions of the
other group of workers.'' \136\
---------------------------------------------------------------------------
\132\ Teche Vermilion Sugar Cane Growers Ass'n Inc. v. Su, 749
F. Supp. 3d 697 (W.D. La. 2024), opinion clarified, No. 6:23-CV-831,
2024 WL 4729319 (W.D. La. Nov. 7, 2024), and amended, No. 6:23-CV-
831, 2025 WL 1969937 (W.D. La. July 16, 2025).
\133\ Id. at 724, 729.
\134\ Id.
\135\ Id. at 729.
\136\ Id. at 724.
---------------------------------------------------------------------------
Although the OEWS ``captures no information about actual skills or
responsibilities of the workers whose wages are being reported . . .''
the Department has extensive experience issuing skill-based wage levels
by evaluating the employer's job opportunity in relation to detailed
occupational information contained in the O*NET system as well as
educational requirements in sources like the BLS, with the generally
accepted principle that workers in jobs possessing relatively higher
qualifications tend to earn higher wages than workers in those same
jobs that possess lower levels of qualifications.\137\ The AEWR
methodology adopted in this IFR is administratively similar to the
current prevailing wage determination methodology utilized in the H-1B
[[Page 47937]]
temporary nonimmigrant and PERM immigrant visa programs, where an
assessment of the employer's job duties, qualifications, and nature of
the work are the primary determinants of a four-tiered wage level
determination. The use of a four-tiered wage level structure that is
currently in effect for these visa programs is mandated by Congress in
the H-1B Visa Reform Act of 2004.\138\ Both Congress and the
Department's regulations and guidance require the use of four wage
levels that most reasonably reflect the qualifications (i.e.,
education, experience, and level of supervision) contained in the
employer's job offer.
---------------------------------------------------------------------------
\137\ See 76 FR at 3453.
\138\ Consolidated Appropriations Act, 2005, Public Law 108-447,
div. J, tit. IV, 423; 118 Stat. 2809 (Dec. 8, 2004), (Mandating 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.'' The
legislation mandates how the four levels for H-1B prevailing wages
are to be calculated by mathematically by manipulating the
Department's then-existing two level wages). the amendment provided
that where the ``survey has only 2 levels, 2 intermediate levels may
be created by dividing by 3, the difference between the 2 levels
offered, adding the quotient thus obtained to the first level and
subtracting that quotient from the second level. See 8 U.S.C.
1182(p)(4); See also 73 FR at 77177 (Noting ``that the skills-based
wage levels are not determined by surveying the actual skill level
of workers, but rather by applying an arithmetic formula'' and that
``Congress has explicitly endorsed the use of such an arithmetic
approach . . .'').
---------------------------------------------------------------------------
In order to implement the INA's four-tier prevailing wage
provision, the Department published comprehensive Prevailing Wage
Determination Policy Guidance for Nonagricultural Immigration Programs,
first in 2005 and revised guidance in 2009, which expanded the existing
two-tier OEWS wage level system to provide four ``skill levels'': Level
I ``entry level,'' Level II ``qualified,'' Level III ``experienced,''
and Level IV ``fully competent.'' \139\ Although the higher-skilled
specialty occupations of the H-1B and PERM visa program possess much
greater variation in salaried wages based on experience, education, and
levels of supervision for Congress to mandate no less than a four-
tiered wage level structure, the Department's experience reviewing
agricultural job orders shows that many occupations are primarily
differentiated based on prior related experience, credentials or
certificates necessary to utilize equipment, tools, and supplies, and
the level of communication and close supervision workers need to
perform the work. Given that four levels of distinction may present
challenges to administer due to the unique nature of agricultural job
opportunities, as compared to other higher-skilled specialty
occupations, the Department has decided to adopt the two most pertinent
skill levels of the existing four-tiered wage level structure when
determining the AEWRs based on the qualifications contained in an
employer's H-2A job offer: the Level I ``entry level'' that represents
the mean of the lower one-third of workers in a given occupational wage
distribution, and the Level III ``experienced'' that represents the
mean of all workers in a given occupational wage distribution, which is
a computation that has been used to set AEWRs in the H-2A program for
many decades to determine the AEWRs. Because the statute uniquely
mandates that qualifications contained in an employer's job offer must
be ``normal and accepted qualifications required by non-H-2A-employers
in the same or comparable occupations and crops,'' a Level III wage
will continue to provide the most reasonable computation of the AEWRs
in circumstances where the employer's desired qualifications align with
what is normally required for a given occupation based on the O*NET
system.
---------------------------------------------------------------------------
\139\ Employment and Training Administration; Prevailing Wage
Determination Policy Guidance, Nonagricultural Programs (Rev. Nov.
2009). Available at: https://www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/NPWHC_Guidance_Revised_11_2009.pdf.
---------------------------------------------------------------------------
Thus, the Department concludes that use of an AEWR determination
methodology that takes into account the qualifications contained in the
employer's job offer--similar to the assessment conducted in
determining prevailing wages in the permanent and H-1B programs--
provides a more reasonable, consistent, and administratively feasible
approach that better reflects market-based wages paid to U.S. workers
similarly employed than the current methodology of providing a single
average hourly gross wage without any consideration of the
qualifications required by employers who are seeking temporary
agricultural labor certification to employ H-2A nonimmigrant workers.
C. The Department Will Assess the Duties and Qualifications of the
Employer's Job Offer When Assigning the Most Applicable SOC Code(s)
1. Consideration of Duties Performed for the Majority of the Workdays
During the Contract Period
To reduce the potential for inconsistent assignments of a SOC
code(s) to the employer's job opportunity by SWAs and COs, address
concerns raised in recent litigation against the 2023 AEWR Final Rule,
and promote a more effective administration of the H-2A program, the
Department is adopting in this IFR, standards by which the SWAs and COs
will determine the appropriate SOC code(s) based on the duties
performed for the majority (meaning more than 50 percent) of the
workdays during the contract period, including those duties closely and
directly related, and qualifications contained in the employer's job
offer. Specifically, as described in new paragraph (b)(7), when the
employer identifies on the H-2A job order (Form ETA-790A) the duties
that it expects workers to perform for the majority of the workdays
during the contract period, the SWA and CO will assess such duties and,
in combination with any necessary job qualifications, assign the SOC
code that best represents the employer's job opportunity.
For many decades, the assessment of job duties and qualifications
contained in the employer's job offer by the SWA and CO, and assignment
of the SOC code, was based on the occupational classification that best
represented most of the work to be performed for purposes of apprising
prospective qualified and eligible U.S. workers of the job opportunity.
The assignment of the SOC code did not have an impact on the employer's
wage obligations because a single AEWR based on the field and livestock
worker (combined) category of occupations was determined for all H-2A
job opportunities, regardless of duties to be performed and level of
skill or qualifications required in the job offer. However, under the
2023 AEWR Final Rule, the Department bifurcated the determination of
the AEWRs by issuing an FLS-based AEWR when the duties identified in
the H-2A job order covered one or more of the SOC codes encompassed by
the field and livestock workers (combined) category of occupations
under the FLS. When the duties identified in the H-2A job order were
not encompassed by one or more SOC codes within the FLS-based field and
livestock workers (combined) category of occupations, the Department
began issuing an OEWS-based AEWR for that specific SOC code assigned to
the employer's job opportunity. In addition, when the duties identified
in the H-2A job order could not be encompassed within a single SOC
code, the employer was required to offer, advertise, and pay all
workers performing such duties the highest AEWR across all the
applicable SOC codes, regardless of the amount of time a worker(s)
spent performing such duties during the certified period of employment.
See Sec. 655.120(b)(5). In other words, although the vast majority
[[Page 47938]]
of H-2A job opportunities certified by the Department are encompassed
within one or more SOC codes covered by field and livestock workers
(combined) category of occupations under the FLS and are subject to the
single statewide AEWR determination, still other H-2A job opportunities
include duties that fall both within and outside of the field and
livestock workers (combined) category and, no matter how often a
particular duty or work task is performed by a worker, the Department
determines the AEWR based on the highest of the applicable FLS and
OEWS-based wage rates that must be paid to workers employed under the
temporary agricultural labor certification for the entire certified
period of employment.
The Department has determined that the standards associated with
the assignment of a SOC code(s) to the employer's job opportunity,
which is inextricably linked to the AEWR determination that imposes
substantive wage obligations on employers, needs revision. In USA Farm
Labor, Inc., plaintiffs expressed concern that the 2023 AEWR Final Rule
standards required the SWAs and COs to assign a SOC code with a higher
AEWR to an employer's job opportunity, such as construction laborer or
heavy truck driver, even where a worker(s) will only be expected to
perform such work on a minor or intermittent basis, and that any ``job
duty consistent with a higher paid occupation will trigger a higher
AEWR without regard to how much time a worker spends performing that
duty.'' \140\ Plaintiffs in Florida Growers Association, Inc., raised
similar concerns with the court and suggested the Department confine
its use of OEWS-based AEWR determinations by examining the primary or
main duties of the work to be performed or, alternatively, applying the
applicable wage to the specific work considered to be similar
employment, rather than the highest applicable AEWR to all workers at
all times under the contract. And finally, in Teche Vermilion, the
court determined the plaintiffs were ``likely to succeed on the merits
of their claim that the Final Rule exceeds DOL's authority under
section 1188(a)(1)(B) because it bases its revised AEWR methodology for
H-2A sugarcane truck drivers on the average of wages of domestic, non-
farm transportation workers who are not similarly employed.'' \141\
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\140\ USA Farm Labor, Inc. v. Su, Memorandum in Support of
Plaintiff's Motion for Summary Judgment at 3, No. 1:23-cv-00096-MR-
WCM (W.D.N.C. 2023).
\141\ Id. at 43.
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Upon careful consideration, the Department agrees that assigning a
SOC code and determining the AEWR for an employer's job opportunity
based solely on any duty to be performed, regardless of the amount of
time a worker(s) is expected to perform such duty during a certified
period of employment and without a full consideration of the
qualifications necessary to perform such work, has led to stakeholder
concerns regarding inconsistent SOC code assignments from the SWA and
the CO that are not reflective of wages paid to U.S. workers similarly
employed, and has resulted in the imposition of excessively higher wage
obligations on employers covering the entire certified period of
employment that cannot be reasonably justified. It is the Department's
view that the standards contained in the 2023 AEWR Final Rule must be
reconsidered. Assignment of a SOC code and determination of the
applicable FLS or OEWS-based AEWR should not be based on any duty
identified in the employer's job offer while essentially disregarding
the preponderance of other duties and qualifications the employer
expects workers to perform and possess to meet the needs of its
agricultural operations. Upon review, the Department thinks that the
approach in the 2023 AEWR Final Rule was insufficiently justified and
not necessary for the Department to protect against adverse effects.
The Department reasoned that assignment of higher-skill, higher-paid
SOC code(s) was necessary whenever any job duty performed for any
amount of time fell, for example, outside of the field and livestock
workers (combined) category of occupations because: (1) an FLS-based
AEWR for this job would adversely affect workers in higher paid
occupations like construction or heavy trucking; \142\ (2) employers
may combine two job opportunities into one application and have certain
workers perform exclusively the higher-skill duties; \143\ and (3) the
policy is simpler and more administratively feasible and would not
require additional recordkeeping on employers.\144\
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\142\ 88 FR at 12783 (``Use of the highest applicable wage in
these cases reduces the potential for employers to offer and pay
workers a wage rate that, while appropriate for the general duties
to be performed, is not appropriate for other, more specialized
duties the employer requires.'').
\143\ Id. at 12781 (``[A]ssigning an SOC code based on the
`primary duties' or the percentage of time identified for each duty
in an employer's job opportunity description could permit or
encourage employers to combine work from various SOC codes,
interspersing higher-skilled, higher-paying work among many workers
so that the higher-paying work is never a duty performed by any one
employee more than the specified percentage.'').
\144\ Id. at 12783 (``[U]se of the highest applicable wage
imposes a lower recordkeeping burden than if the Department
permitted employers to pay different AEWRs for job duties falling
within different SOC codes on a single Application for Temporary
Employment Certification.'' A `` `percentage per duty' disclosure
requirement would increase administrative burden for employers
(e.g., substantial recordkeeping to ensure that the actual work each
worker performed aligns with the percentages disclosed) . . .'').
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Upon review, the Department has concluded that the 2023 AEWR Final
Rule did not adequately explain similarly employed workers' wages would
be impacted if an H-2A worker whose duties involve mostly performing
field and livestock work with a minimal amount spent hauling crops
using trucks, for example, were paid the FLS-based AEWR without
considering the amount of time or duration workers spent performing
such tasks and the qualifications identified in the employer's job
offer. Further, this standard was not consistent with the Department's
stated intent in the 2023 AEWR Final Rule to undertake a ``case-by-
case'' review of the ``totality of the information in an H-2A
application and job order'' based on a consideration of whether the
``qualifications, requirements, and other factors are consistent with
that occupation'' like ``the type of equipment involved . . . [and] the
location where the work will be performed . . .'' \145\
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\145\ Id. at 12780.
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The Department has also reconsidered its reasoning from the 2023
AEWR Final Rule that payment of a higher-skill occupation wage for the
entire employment period is necessary in all cases where a minor duty
falls within that category in order to prevent misclassification of the
employer's job opportunity. The central inquiry in assigning one or
more SOC code(s) to an employer's job opportunity and determining the
AEWR is whether two sets of workers (i.e., H-2A and U.S. workers) are
or will be similarly employed, such that employment of the H-2A workers
below the AEWR would adversely affect U.S. workers similarly employed.
The Department's existing regulatory mechanisms to enforce prohibitions
on misclassification of workers are adequate and appropriate, and the
lack of objective data or other evidence supporting concerns about
misclassification of workers or misrepresentation of a job opportunity
supports such conclusion.\146\
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\146\ In addition, the Department's regulations have long
required an H-2A employer to pay at least the AEWR to any U.S.
worker who in fact performs the same work as the H-2A workers for
time so spent, regardless of the worker's qualifications or skill
level, further protecting against the potential harm from
misclassification. See 20 CFR 655.103(b) (definition of
corresponding employment); Overdevest, 2 F.4th 977.
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[[Page 47939]]
Additionally, without objective data or other evidence supporting
the aforementioned concerns, the Department believes there is
insufficient grounds for assigning an employer's job opportunity to a
SOC code with an excessively higher AEWR based on a single statement of
duties or use of a particular vehicle, regardless of the amount of time
a worker(s) may spend performing such duties or the relative importance
of that duty to the broader job opportunity.
And finally, the Department concludes that imposition of the
standard in the 2023 AEWR Final Rule based on ease of employer
recordkeeping burdens was not sufficiently justified in comparison to
the actual wage obligations being imposed on employers impacted by the
application of this standard. The Department agrees with the court's
reasoning in Teche Vermillion that the standard of assigning the SOC
code to the employer's job opportunity warranted more careful
consideration of the unrecoverable compliance costs imposed on
employers relative to the non-quantified benefits discussed by the
Department in the vacated 2023 AEWR Final Rule.
For the reasons discussed above, the Department is adopting a
revised standard to ensure that SOC code assignments and AEWR
determinations for employer job orders are based on an assessment of
the duties performed for the majority of the workdays during the
contract period, including those closely and directly related duties,
and the qualifications necessary for workers to perform the work. This
standard will provide a straightforward method for the SWAs and COs to
use when assigning SOC code(s) and will more effectively ensure
occupational classifications are based on consideration of the totality
of the circumstances related to the employer's job opportunity.
Specifically, when the employer identifies on the H-2A job order the
duties that it expects workers to perform for more than 50 percent of
the workdays during the contract period and such duties, or a
combination thereof, fall within one or more SOC codes within the field
and livestock workers (combined) category, the SWA and CO will assess
such duties and, taking into consideration any necessary job
qualifications, assign the SOC code that best represents the employer's
job opportunity within that category. When the job duties performed for
the majority of the workdays during the contract period are within the
field and livestock workers (combined) category and the employer's job
order discloses duties from other occupations that are not encompassed
by this category of occupations, the job opportunity will still be
assigned a SOC code within the field and livestock workers (combined)
category, provided that these other duties are performed for less than
the majority of the workdays during contract period. The Department
reminds stakeholders that all job duties disclosed on the job order,
regardless of the amount of time workers are expected to perform them,
must still qualify as agricultural labor or services as defined in the
statute and regulations. See generally 8 U.S.C. 1101(a)(15)(H)(ii)(a)
(limiting H-2A eligibility to ``agricultural labor or services, as
defined by the Secretary of Labor in regulations and including
agricultural labor defined in section 3121(g) of Title 26, agriculture
as defined in section 203(f) of Title 29, and the pressing of apples
for cider on a farm, of a temporary or seasonal nature'').
As an example, where a fixed-site grower identifies on the H-2A job
order that workers will perform duties related to the planting,
cultivating, and harvesting of sugarcane for the majority of the
workdays during the contract period, which is typically assigned SOC
code 45-2091 (Agricultural Equipment Operators) within the field and
livestock worker (combined) category with one AEWR, and occasionally
transport harvested sugarcane using heavy trucks along public roads to
local processing mills, which was assigned SOC code 53-3032 (Heavy and
Tractor-Trailer Truck Drivers) under the 2023 AEWR Final Rule with a
different and higher AEWR, the fact that the workers may be expected to
operate and drive heavy trucks for any amount of work time during the
certified period of employment will no longer be dispositive in
assigning the SOC Code and determining the AEWR for the employer's job
opportunity. Rather, the Department will consider the totality of
circumstances of the employer's job opportunity, including the nature
and duration of the duties to be performed and the qualifications that
workers must possess to perform the duties prescribed. Under this IFR,
consideration of duties disclosed on the job order that the employer
expects workers to perform for the majority of the workdays during the
contract period will ensure an appropriate consideration of the
totality of the H-2A job opportunity, with a clear focus on the
majority duties of the job and the relation of job duties to each
other, and establish a method SWAs and COs can use to more clearly make
determinations of similarly employed workers for the purpose of
determining the wage rate necessary to prevent adverse effect on those
workers.
The Department also notes that adoption of this standard is similar
to the assessment performed by the SWA and the CO when determining
whether an employer's job opportunity qualifies under the standards and
procedures, including a determination of the applicable monthly AEWR,
for employers seeking to hire foreign temporary agricultural workers
for job opportunities in herding and production of livestock on the
range. Specifically, under 20 CFR 655.210(b), the employer's job order
must include, among other required conditions, a statement that workers
will spend the majority (meaning more than 50 percent) of the workdays
during the contract period engaged in the herding or production of
livestock on the range. Any job duties performed at a place other than
the range (e.g., a fixed site farm or ranch) must be performed on no
more than 50 percent of the workdays in a work contract period, and
duties at the ranch must involve the production of livestock, which
includes duties that are closely and directly related to herding and/or
the production of livestock. Provided that an employer's job offer
meets this majority of workdays standard, the SWA and CO will typically
assign SOC code 45-2093 (Farmworkers, Farm, Ranch, and Aquacultural
Animals) to the employer's job opportunity and evaluate the wage offer
based on a determination of the monthly AEWR applicable to work
performed on the range.
Further, adoption of this standard is similar (but not identical)
to the primary duties assessment stipulated by WHD regulations and
guidance related to FLSA exemptions. For example, the Department uses a
primary duties test in determining whether an employee is exempt from
the FLSA's minimum wage and overtime pay requirements because the
employee is employed in a bona fide executive, administrative, or
professional capacity. See 29 U.S.C. 213(a)(1). The FLSA regulations at
29 CFR part 541 define a ``primary duty'' as ``the principal, main,
major or most important duty that the employee performs . . . with the
major emphasis on the character of the employee's job
[[Page 47940]]
as a whole.'' 29 CFR 541.700(a).\147\ WHD notes in its regulations that
the ``amount of time spent performing exempt work can be a useful guide
in determining whether exempt work is the primary duty of an employee''
and thus ``employees who spend more than 50 percent of their time
performing exempt work will generally satisfy the primary duty
requirement,'' though the amount of time an employee spends on exempt
duties alone ``is not the sole test.'' 29 CFR 541.700(b). When ``an
employee concurrently (or simultaneously) performs both exempt and
nonexempt duties,'' the ``character of the employee's job as a whole''
determines the primary duty.\148\ For example, an employee would not
qualify for the FLSA exemption for executive employees if the
employee's ``primary duty is ordinary production work or routine,
recurrent, or repetitive tasks . . . even if they also have some
supervisory responsibilities.'' \149\ Additionally, in determining
whether an employee's primary duty is exempt work, WHD also considers
ordinarily non-exempt duties to be exempt under the FLSA if they are
``directly and closely related'' to exempt duties, meaning ``relate[d]
to exempt work and contribut[ing] to or facilitat[ing] performance of
exempt work,'' such as duties that ``arise out of exempt duties and
routine work without which exempt work cannot be performed properly.''
\150\ Finally, the FLSA primary duty standard looks at ``whatever
length of time is appropriate to capture the character of the
employee's job as a whole, not a day-by-day scrutiny of the tasks
performed.'' \151\
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\147\ See also 5 CFR 831.802 (OPM regulations) (stating that
``if an employee spends an average of at least 50 percent of his or
her time performing a duty or group of duties, they are his or her
primary duties'' and defining primary duties as duties ``paramount
in influence or weight . . . that . . . constitute the basic reasons
for the existence of the position . . . Occupy[ing] a substantial
portion of the individual's working time over a typical work cycle''
and ``assigned on a regular and recurring basis.'').
\148\ WHD Field Operations Handbook, Ch. 22, Executive,
Administrative, Professional, Computer, and Outside Sales
Exemptions: FLSA Section 13(a)(1) (29 U.S.C. 213(a)(1)), Sec. Sec.
22b01(c)(1), available at https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/FOH_Ch22.pdf; 29 CFR 541.106.
\149\ WHD Field Operations Handbook at Sec. 22b01(c)(3).
\150\ Id. at Sec. 22a06(d).
\151\ Id. at Sec. 22a03.
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The adoption of a majority duties standard in this IFR will be
administratively feasible and not impose unnecessary recordkeeping
burdens on employers. To implement this new standard, the Department
will provide guidance in the form of frequently asked questions that
can help employers understand how to use the existing the H-2A job
order form to specify the majority duties, including those closely and
directly related duties, and then distinguish those from other duties
that the worker(s) are expected to perform during the period of
employment. The frequently asked questions the Department will provide
to employers seeking temporary agricultural labor certification are
procedural and non-substantive clarifications of existing OMB-approved
information collection that will help employers better organize and
identify the duties and tasks already being disclosed on the H-2A job
order that will assist the SWA and CO in assigning the SOC code that
best represents the employer's job opportunity. The requirement that
employers keep accurate and adequate records with respect to each
worker's earnings, including records showing the nature and amount of
the work performed, and make these records available for inspection and
transcription by the Department and by the worker and representatives
designated by the worker, in accordance with Sec. 655.122(j)(1)-(2)
remains unchanged. As provided in the Department's existing
regulations, depending on the nature of the violation, failure to
maintain and produce compliant records or failure to accurately
describe the nature and extent of job duties may result in debarment
under Sec. 655.182(d)(1)(vi), (vii), and (d)(4) or (d)(5). See also 29
CFR 501.20.
In summary, the Department concludes that adoption of a majority
duties standard, including those duties closely and directly related,
together with the clarification of the SOC coding process, will help to
ensure consistent coding based on consideration of the totality of the
employer's job opportunity and will provide more reasonable
determinations of workers who are similarly employed. More consistent
occupational classification, in turn, will ensure AEWR determinations
and corresponding wage obligations of employers are accurate with the
``clear congressional intent . . . 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.'' \152\
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\152\ 88 FR at 12772 (citing 54 FR 28037, 28046 (Jul. 5, 1989)).
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2. Additional Guidance on Assigning SOC Codes Based on the Duties and
Qualifications in the Employer's Job Opportunity
To address the need for consistent occupational coding related to
an employer's job opportunity, the Department is providing additional
guidance regarding the methods by which the CO will assign H-2A job
opportunities to one or more SOC occupation codes based on an
assessment of the duties that employers expect workers to perform for
the majority of the workdays during the contract period, including
those duties closely and directly related, and qualifications contained
in the employer's job order seeking temporary agricultural labor
certification to employ H-2A workers. When determining the AEWR, the
SWA and the CO must first determine the appropriate occupational
classification, or SOC code(s), for the employer's job opportunity by
comparing the duties and requirements contained in the employer's job
order to the SOC definitions, skill requirements, and tasks that are
listed in O*NET.\153\ The Department is taking the opportunity in this
rulemaking to clarify how the CO and SWA will evaluate the scope of
duties identified within an employer's job offer for purposes of
determining the applicable SOC code(s), particularly as it relates to
certain driving, supervisory, and other farm maintenance duties
performed by workers.
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\153\ 88 FR at 12779.
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Prior to the 2023 AEWR Final Rule, assignment of SOC codes was less
significant to the employer's AEWR obligations because all job
opportunities were issued an FLS-based AEWR covering the field and
livestock workers (combined) occupations. The assignment of SOC codes
became more significant in AEWR determinations under the 2023 AEWR
Final Rule, which specified that when the employer's job requires
duties that cannot be encompassed within a single SOC occupational
classification, the employer must pay the highest AEWR for the
applicable SOC codes. For example, if the employer's job order required
heavy trucking duties and crop harvesting duties, the Department
assigned two SOC codes--53-3032 encompassing heavy truck drivers and
45-2092 encompassing crop farmworkers--and assigned the highest AEWR,
which in most cases was the occupation-specific OEWS wage applicable to
SOC 53-3032, rather than the FLS field and livestock workers
[[Page 47941]]
(combined) wage applicable to SOC 45-2092. The Department concluded
that for ``these mixed job opportunities . . . using the AEWR for the
higher paid SOC code is necessary to prevent adverse effects on the
wages of workers in the United States similarly employed resulting from
inaccurate SOC code assignment.'' \154\
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\154\ Id. at 12777.
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However, the statute does not define or dictate how the Department
is to apply the term ``similarly employed'' for purposes of ensuring no
adverse effect on wages and working conditions and does not require
that such a determination be predicated on workers employed in an
identical job. It does, however, specify that the Secretary ``shall
apply the normal and accepted qualifications required by non-H-2A-
employers in the same or comparable occupations and crops.'' \155\ When
evaluating an employer's job offer, the Department has historically
interpreted the term ``qualification'' to mean a characteristic,
excluding the job duties or work tasks to be performed, that is
necessary to the individual's ability to perform the job in question.
Such characteristics include, but are not limited to, the ability to
use specific tools, vehicles, or equipment as well as any education or
training required for performing duties or work tasks under the
employer's job opportunity.\156\
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\155\ See 8 U.S.C. 1188(c)(3)(A)(ii).
\156\ See 80 FR 24062.
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In the absence of other reliable and objective sources of
information related to the job qualification of a specific crop, the
Department has a long-standing practice of using O*NET's SOC-based
taxonomy for assessing whether an employer's job qualification is bona
fide and consistent with the normal job qualifications of employers and
workers performing substantially similar work in jobs covered by a
particular occupational classification. This analysis can further aid
the Department in assigning an appropriate AEWR, better tailored to
protecting workers in the U.S. similarly employed than the
considerations used under the 2023 AEWR Final Rule. Specifically,
duties and responsibilities in an H-2A employer's job opportunity that
have common characteristics and qualifications (e.g., work tasks,
requirements, tools), or those that are substantially alike in
substance or essentials, as the duties and responsibilities performed
by workers employed in jobs covered by a particular SOC code, would
indicate (among other factors as described herein) that the particular
SOC code is appropriate to assign to the H-2A job opportunity.
Conversely, if the job duties or work tasks, requirements, tools, or
other qualifications in the employer's job opportunity seeking
temporary labor certification to employ H-2A workers are substantially
different from those identified in a specific SOC code within the O*NET
taxonomy, that SOC is unlikely to be appropriate to assign to the H-2A
job opportunity.
O*NET remains a primary reference source used by the CO and SWA to
assess the scope of duties and qualifications identified within an
employer's H-2A job opportunity for purposes of determining its
occupational classification (i.e., SOC code). O*NET ``was first
conceived of as a conceptual model of information on occupational and
worker requirements and attributes . . . designed to replace the
outdated Dictionary of Occupational Titles . . .'' the predecessor to
O*NET, and was first released as the O*NET `98 database.\157\ O*NET is
a taxonomy of occupational characteristics organized around job-
oriented and worker-oriented descriptors, such as detailed work tasks
or activities, job requirements (e.g., education, training, licensure,
experience), organizational context, and tools and technology that are
common to the occupation and may influence the scope of work performed
and the capacity to acquire knowledge and skills required for effective
work performance.\158\ Detailed occupational information is collected
using multiple independent methods such as surveying a national sample
of employer establishments and their workers; surveying samples of
occupational experts; and collecting data from occupational analysts,
who are provided with updated data from surveys of workers.
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\157\ Boes, Ron, Frugoli, Pam, Lewis, Phil, and Litwin, Karen
(Oct. 2001), O*NET Database Release 4.0: Content Model and Database
Summary, The Evolution of O*NET, 2. National O*NET Consortium.
Available at: https://www.onetcenter.org/dl_files/summary_only.pdf.
\158\ See The O*NET Content Model (explaining the O*NET content
model, which ``provides a framework that identifies the most
important types of information about work and integrates them into a
theoretically and empirically sound system'' that ``allows
occupational information to be applied across jobs, sectors, or
industries (cross-occupational descriptors) and within occupations
(occupational-specific descriptors)'' and ``enable the user to focus
on areas of information that specify the key attributes and
characteristics of workers and occupations.''). Available at:
https://www.onetcenter.org/content.html. For a detailed description
of the development of the Content Model, see Peterson, N.G., et al.
(1999). An Occupational Information System for the 21st Century: The
Development of O*NET. American Psychological Association.
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The O*NET structure allows occupational information to be
aggregated and applied across multiple jobs, sectors, or industries
where the work tasks and activities performed by workers, as well as
the requirements to perform such work, are substantially similar.\159\
For example, SOC code 45-2092 (Farmworkers and Laborers, Crop, Nursery,
and Greenhouse) includes a wide range of distinct jobs such as field
irrigation workers, greenhouse workers, and orchard workers, where the
underlying characteristics of work (i.e., tasks, requirements, tools)
across these distinct jobs are substantially similar to one another.
Thus, although workers under any particular SOC code may be performing
work across dozens of different job titles and in potentially different
sectors or industries, the characteristics and qualifications of the
work performed are common or substantially alike in substance or
essentials.
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\159\ See, e.g., A Database for a Changing Economy: Review of
the Occupational Information Network (O*NET) (2010), 22-23. National
Research Council, Washington, DC: National Academies Press
(Describing the O*NET content model as ``a taxonomy of occupational
descriptors'' with ``occupations as the unit of analysis . . .
rather than the job or position'' and noting the occupation ``is
broader than a specific job or specific position,'' ``is not
idiosyncratic to a particular organization, industry, or setting,''
and may ``include several jobs if the general responsibilities,
activities, and requirements for the various jobs are substantially
similar.'').
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In addition, the O*NET provides relevance and importance scores for
specific work tasks that reflect the percentage of current workers who
believe that a particular duty or work task is relevant and important
to his or her current job. For purposes of classifying an employer's
job opportunity under one or more SOC codes, these scores provide an
understanding of the full scope of job duties considered ``core'' or
primary tasks to the occupation, and which tasks are ``supplemental''
or directly and closely associated to workers similarly employed in the
occupational classification. O*NET classifies tasks as ``core'' when at
least 67 percent of current workers surveyed believe that the task is
relevant and which the average current worker believes the task is
important to extremely important (i.e., >=3.0 based on a scale where 1
= Not Important to 5 = Extremely Important) to their job. Supplemental
tasks are those tasks performed within the occupational classification
where less than 67 percent of current workers surveyed believe that the
task is relevant and which the average current worker
[[Page 47942]]
believes is relatively less important to their job.
For example, the task of ``load agricultural products into trucks,
and drive trucks to market or storage facilities'' is considered a core
task to the SOC code 45-2092 (Farmworkers and Laborers, Crop, Nursery,
and Greenhouse) with a relevance score of 78 and an importance score of
3.3. This means that 78 percent of current Farmworkers and Laborers
surveyed reported that this task is relevant, and the average worker
believed it is frequently important to their job but not necessarily
performed on a day-to-day basis. However, the task of ``move
containerized shrubs, plants, and trees, using wheelbarrows or
tractor'' is considered supplemental because, although the average
worker believed it is an important task, only 37 percent of current
Farmworkers and Laborers surveyed reported this task as relevant to
their day-to-day work. Thus, the combination of the ``core'' and
``supplemental'' work tasks identified in O*NET for a particular SOC
code helps establish a data-driven foundation for evaluating the scope
of duties that are normally performed by workers, even across multiple
distinct jobs, who are similarly employed under that occupational
classification.
Finally, O*NET collects information pertaining to ``tools and
technology'' that are deemed essential to effective performance within
a distinct job under the SOC code. In other words, the machines,
equipment, vehicles, software, and other tools identified are specific
to the occupational classification, reflect those items necessary for
an incumbent worker to carry out the tasks, whether ``core'' or
``supplemental,'' and expressed in a language understood by workers who
perform work in the job, sector, or industry. In addition, the
identified tools and technology often have an expectation of a training
requirement that can range from a short-term demonstration of use or
on-the-job training to more formal education or vocational training.
For example, SOC code 45-2091 (Agricultural Equipment Operators)
identifies a combination of more than 64 different categories of tools
that workers may use to perform their jobs, including a wide array of
harvesting equipment, trucks and tractor-trailers, spreaders, and
loaders, where employees in this occupational classification need
anywhere from a few days to a few months of training, and accordingly a
more experienced incumbent worker usually provides a short
demonstration on proper use and care of the equipment. Thus, when all
these components within the taxonomy are considered in their totality,
O*NET represents the best available information for the CO and SWA to
use in evaluating an employer's job opportunity for purposes of
classifying the agricultural labor or services into one or more SOC
codes and determining the applicable AEWR.
In determining the appropriate occupational classification, the CO
will continue to evaluate each job opportunity on a case-by-case basis,
considering the totality of the information in an H-2A application and
job order, to determine the appropriate SOC code. In making a
determination of the SOC code(s), the CO and SWA will continue to
compare the duties and qualifications contained in the job order with
the definitions, work tasks, job requirements, and tools that are
listed in O*NET's SOC-based taxonomy. Where similar information appears
in more than one SOC code (i.e., overlapping work tasks), such as
transporting workers or agricultural commodities or maintaining and
repairing farm buildings or equipment, the CO and SWA will continue to
consider other factual qualifications presented in the job order (e.g.,
types of vehicles or minimum experience or licensure requirements) that
can provide context for determining which SOC code or codes best
represent the employer's job opportunity. To the maximum extent
practicable, where the duties performed for the majority of the
workdays during the contract period, including those duties closely and
directly related, and qualifications presented in the job order are
sufficiently comparable to agricultural work performed on or off farm
(e.g., workers primarily engaged in harvesting sugarcane and will also
transport the cut cane off farm to a mill for processing), the CO and
SWA will assign one SOC code contained within an agricultural-related
major occupational grouping (e.g., 45-0000 Farming, Fishing, and
Forestry Occupations) or other grouping of specific occupations
directly and closely associated with the agriculture, forestry,
fishing, and hunting industry sector (i.e., North American Industry
Classification System code 11 \160\) or the cluster of agricultural
careers \161\ identified by O*NET. Job duties or work tasks presented
in the job order that are characterized as irregular, sporadic, or
intermittent will not be considered by the CO and SWA for purposes of
determining its occupational classification or SOC code.
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\160\ O*NET classifies occupations according to industry groups
where businesses or organizations have similar activities, products,
or services. The occupations designated by O*NET as falling within
the Agriculture, Forestry, Fishing, and Hunting Industry are based
on the percentage of workers employed in that industry. For more
information, see the O*NET website at https://www.onetonline.org/find/industry?i=11.
\161\ Based on the National Career Clusters[supreg] Framework,
O*NET organizes occupations containing the same field of work that
require similar skills into career clusters as a taxonomy that helps
inform the design and implementation of education, employment and
job training programs that can help focus program planning towards
individuals obtaining the necessary knowledge, competencies, and
training for success in a particular career pathway. For more
information on the occupations organized into the Agriculture Career
Cluster, see the O*NET website at https://www.onetonline.org/find/career?c=050100. For more information on the National Career
Clusters Framework, see the Advance CTE website at https://careertech.org/career-clusters.
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For job opportunities involving driving duties, the CO and SWA will
continue to look at qualifications such as the type of equipment
involved (e.g., pickup trucks, custom combine machinery, or semi
tractor-trailer trucks; makes and models of machines to be used), the
location where the work will be performed (e.g., on a farm or off), and
any other requirements contained in the job order to determine the
appropriate SOC code and applicable AEWR. Based on a review of the
O*NET core and supplemental work tasks, an employer's job opportunity
can specify a wide array of driving responsibilities across one or more
of the five SOC codes comprising field and livestock worker occupations
(combined) that would continue to be subject to a single AEWR. Workers
employed in jobs covered by these SOC codes are primarily engaged in
agricultural work (e.g., planting, cultivating, harvesting) and perform
other tasks that are directly and closely related, such as driving
duties.
Specifically, a worker engaged in harvesting, whether by hand or
machinery, is typically performing other relevant and important tasks
covered by the field and livestock worker (combined) category of
occupations, such as ``load[ing] agricultural products into trucks and
drive trucks to market or storage facilities,'' which is encompassed by
SOC code 45-2092 (Farmworkers and Laborers, Crop, Nursery, and
Greenhouse); ``driv[ing] trucks to haul crops, supplies, tools, or farm
workers,'' which is encompassed by SOC code 45-2091 (Agricultural
Equipment Operators); and ``patrol[ing] grazing lands and driv[ing]
trucks or tractors to distribute feed to animals or move equipment and
animals from one location to another,'' which is encompassed by SOC
code 45-2093 (Farmworkers, Farm, Ranch, and Aquacultural Animals). With
respect to
[[Page 47943]]
the types of equipment (i.e., tools), O*NET identifies as necessary for
the performance of duties associated with these work tasks includes
operating All-Terrain-Vehicles, sport utility vehicles, light trucks
(i.e., less than 26,001 Gross Vehicle Weight), multi-purpose
agricultural tractors, dump trucks, and heavy tractor-trailers (i.e.,
at least 26,001 Gross Vehicle Weight). Finally, performance of these
driving duties and operation of the types of equipment identified do
not normally require formal education (e.g., post-secondary) or
training (e.g., apprenticeship) or credentialing (e.g., CDL license)
under these SOC codes. Therefore, where the work tasks presented in an
employer's job order require workers to be engaged in agricultural work
for the majority of the workdays during the contract period and perform
driving duties using any of the types of equipment identified without
the requirement for formal education, training, or credentialing and
possess three months or less of related experience, the CO and SWA
will, absent additional job details that might indicate otherwise,
assign one of the five SOC codes comprising field and livestock worker
occupations (combined), as applicable, that best represents the
employer's job opportunity and subject to a single AEWR.
In contrast, a H-2A job opportunity that requires a worker to
possess a CDL with more than three months to one year of related
experience and whose duties, including those duties closely and
directly related, for the majority of the workdays during the contract
period involve driving a heavy tractor-trailer combination to deliver
agricultural products over public roads through weigh stations to
storage or market, including other essential work tasks such as
checking all load-related documentation for completeness and accuracy,
operating Citizen Band radios or Global Positioning System equipment to
exchange necessary information with supervisors or other drivers,
coupling and uncoupling trailers, maintaining vehicle logs, and
obtaining customer signatures for delivery of goods, may be assigned
SOC code 53-3032 (Heavy and Tractor-Trailer Truck Drivers) even if such
worker is also expected to perform some hand-harvesting work during a
minor portion of the work contract period. In this scenario, the
requirement under paragraph (b)(7) applies when determining the
employer's H-2A wage obligation as the AEWR applicable to SOC code 53-
3032, absent additional job details that might indicate otherwise, best
represents the agricultural labor or services to be performed under the
employer's job opportunity.
For job opportunities that involve driving farmworkers from place
to place from assigned housing to and from the farm property, the CO
will consider factors such as the type of vehicle (e.g., a farm truck
or van or a hired van or bus, such as a Calvans vehicle), the location
where the farmworker transport will be performed (e.g., around the
farm, including on private roads, or on public roads), and any
qualifications and requirements for the transport (e.g., type of
driver's licensure, gross vehicle weight, vehicle maintenance
responsibilities, paperwork requirements) to determine the appropriate
SOC code to assign to the employer's job opportunity. For instance, the
Department notes that it is a common practice for employers to provide
workers with multi-purpose vehicles (e.g., sport utility vehicles,
heavy or light trucks) for use in transporting crops, supplies,
equipment, tools, or other farmworkers, including vehicles needed to
drive from employer-provided housing to the worksites on an as-needed
basis, during the work contract period. These vehicles typically have a
capacity of less than 13 tons and do not require the equivalent of a
commercial drivers' license to operate on or off the farm properties.
Therefore, driving duties associated with these types of qualifications
are all within the five SOC codes comprising field and livestock worker
occupations (combined). In addition, the fact the workers may also use
these same vehicles, at their discretion, to transport themselves to
the grocery store, bank, or laundry facilities, is not a relevant
factor that would warrant the CO and SWA assigning another SOC code
outside of the five SOC codes comprising field and livestock worker
occupations (combined).
In contrast, an H-2A job opportunity that requires a worker to
possess more than three months to one year of related experience and
whose duties, including those duties closely and directly related, for
the majority of the workdays during the contract period involve picking
up farmworkers, according to a regular schedule, from employer-provided
housing or a centralized pick-up point, in a van or bus used only for
passenger transport, on public roads (e.g., from a motel to the farm),
driving them to the place(s) of employment to perform hand-harvest
work, and communicating with other drivers and/or farm supervisors to
receive information and coordinate vehicle movements for passenger
pick-up/drop-off services, may be assigned SOC code 53-3053 (Shuttle
Drivers and Chauffeurs) even if such worker is also expected to perform
some hand-harvesting work. In this scenario, the requirement under
paragraph (b)(7) applies when determining the employer's H-2A wage
obligation as the AEWR applicable to SOC code 53-3053, absent
additional job details that might indicate otherwise, best represents
the agricultural labor or services to be performed under the employer's
job opportunity.
For job opportunities involving supervisory duties, O*NET core and
supplemental work tasks associated with the five SOC codes comprising
field and livestock worker occupations (combined) provide a reasonable
degree of flexibility for workers to direct, monitor and oversee the
work of other workers employed in the job opportunity without the
higher-skills and requirements associated with formal supervision. For
instance, workers employed in jobs covered by these SOC codes who are
engaged in field and livestock related work can also perform tasks
identified by O*NET, such as ``direct and monitor the work of work
crews, casual and seasonal help during planting, weeding, and
harvesting; inform farmers or farm managers of crop progress; record
information about crops, livestock, plants, pesticide use, growth,
production, and costs; and maintain inventory and order materials,''
which are all encompassed, in some manner, by SOC codes 45-2091
(Agricultural Equipment Operators), 45-2092 (Farmworkers and Laborers,
Crop, Nursery, and Greenhouse), and 45-2093 (Farmworkers, Farm, Ranch,
and Aquacultural Animals). Directing, monitoring and overseeing the
work of other workers commonly means assisting the farmer or farm
managers in assigning tasks, issuing equipment, communicating in a
manner that ensures the effective performance of work; collecting and
recording worker productivity or progress using paper or electronic
devices; and performing basic training or direction to workers on
agricultural techniques, as necessary. Therefore, where the work tasks
presented in an employer's job opportunity require workers to be
engaged in field and livestock related work for the majority of the
workdays during the contract period and perform other supervisory
related duties, the CO and SWA will, absent additional job details that
might indicate otherwise, assign one or the five SOC codes comprising
field and livestock worker
[[Page 47944]]
occupations (combined) that best represents the employer's job
opportunity and subject to a single AEWR.
In contrast, an H-2A job opportunity that requires a worker to
possess one or two years related experience for the purpose of
performing duties for the majority of the workdays during the contract
period involving the planning or scheduling work crews according to
personnel and equipment availability, including transportation to-and-
from worksite(s), training and monitoring workers to ensure that safety
regulations are followed, warning or disciplining those who violate
safety regulations, preparing and maintaining time, attendance, or
payroll reports, recording and maintaining personnel actions, such as
performance evaluations, hires, promotions, or disciplinary actions,
and conferring with farmers and farm managers to evaluate weather or
soil conditions and develop or modify work schedules and activities,
may be assigned SOC code 45-1011 (First-Line Supervisors of Farming,
Fishing, and Forestry Workers) even if such worker is also expected to
perform some hand-harvesting work. In this scenario, the requirement
under paragraph (b)(7) applies when determining the employer's H-2A
wage obligation as the AEWR applicable to SOC code 45-1011, absent
additional job details that might indicate otherwise, best represents
the agricultural labor or services to be performed under the employer's
job opportunity.
For job opportunities involving farm maintenance duties, O*NET core
and supplemental work tasks associated with the five SOC codes
comprising field and livestock worker occupations (combined) permit a
worker primarily engaged in performing field and livestock related work
to also perform other relevant and important tasks such as ``adjust,
repair, and service farm machinery and notify supervisors when
machinery malfunctions,'' which is encompassed by SOC code 45-2091
(Agricultural Equipment Operators); ``repair and maintain farm
vehicles, implements, and mechanical equipment; maintain and repair
irrigation and climate control systems, and repair farm buildings,
fences, and other structures,'' which are encompassed by SOC code 45-
2092 (Farmworkers and Laborers, Crop, Nursery, and Greenhouse); and
``inspect, maintain, and repair equipment, machinery, buildings, pens,
yards, and fences,'' which is encompassed by SOC code 45-2093
(Farmworkers, Farm, Ranch, and Aquacultural Animals). With respect to
the types of equipment, O*NET identifies a wide array of tools
necessary for the performance of maintenance duties ranging from basic
hand tools, plows and posthole diggers to backhoes, land levelers and
power tools. Further, performance of these tasks and use of these tools
do not require any formal education or training and, in many cases, are
commonly used on farms and ranches to build, maintain, and repair minor
agricultural structures such as livestock pens, existing farm
buildings, and temporary or permanent fencing around the property.
Therefore, where the work tasks presented in an employer's job
opportunity require workers to be engaged for the majority of the
workdays during the contract period in field and livestock related work
and perform related maintenance duties, including building minor
agricultural structures and fencing around the property, using any of
the types of equipment identified and without the requirement for
formal education, training, or extensive work-related experience, the
CO and SWA will, absent additional job details that might indicate
otherwise, assign one or the five SOC codes comprising field and
livestock worker occupations (combined) that best represents the
employer's job opportunity and subject to a single AEWR.
However, the Department continues to receive H-2A applications, for
example, related to ranch livestock confinement or grain bin elevator
construction on farms that require a few months to one year of previous
experience where workers are expected to perform duties such as reading
and following plans and measurements; aligning and sealing structural
components (e.g., walls and pipes), sometimes by welding; building
frameworks (e.g., walls, roofs, joists, studding, and window and door
frames); installing metal siding, windows, ceiling tiles, and
insulation; and pouring concrete. These construction duties are
consistent with SOC code 47-2061 (Construction Laborers), not with SOC
code 45-2093 where the duties involve maintaining and repairing farm
buildings. In addition, the location of the work--on a farm or off a
farm--or type of structure to be constructed--a livestock confinement
building or a retail building--does not alter the essential duties,
skills, and other qualifications required of the worker. In this
scenario, where a H-2A job opportunity's tasks, qualifications, and
requirements indicate skilled construction work will be performed, the
requirement under paragraph (b)(7) applies when determining the
employer's H-2A wage obligation as the AEWR applicable to SOC code 45-
2067, absent additional job details that might indicate otherwise, best
represents the agricultural labor or services to be performed under the
employer's job opportunity.
With respect to the maintenance of farm equipment or other
vehicles, the Department reiterates that some on-farm mechanics may
perform only the type of routine maintenance consistent with the O*NET
work tasks and other qualifications (e.g., tools and job requirements)
encompassed by the five SOC codes comprising field and livestock worker
occupations (combined). The Department continues to receive H-2A
applications for mechanics and service technicians where workers are
expected to possess one or two years related experience for the purpose
of being engaged for the majority of the workdays during the contract
period in duties such as the following: diagnose, repair, and overhaul
engines, transmissions, components, electrical and fuel systems, etc.
on tractors, irrigation systems, generators and/or other farm
equipment; make major mechanical adjustments and repairs on farm
machinery; repair defective parts using welding equipment, grinders, or
saws; repair defective engines or engine components; replace motors;
fabricate parts, components, or new metal parts using drill presses,
engine lathes, welding torches, and other machine tools (grinders or
grinding torches); test and replace electrical circuits, components,
wiring, and mechanical equipment using test meters, soldering
equipment, and hand tools; read inspection reports, work orders, or
descriptions of problems to determine repairs or modifications needed;
and maintain service and repair records. The Department notes that
duties of this type and scale, whether performed on equipment or other
vehicles (e.g., trucks, automobiles, and buses used to support the
farming operations) that are powered by diesel or gas, are encompassed
within 49-3041 (Farm Equipment Mechanics and Service Technicians), and
not within the routine general maintenance or repair tasks identified
by O*NET associated with the five SOC codes comprising field and
livestock worker occupations (combined).
Finally, as in current practice, if the CO determines that the
employer's wage offer is less than the wage rate that must be offered
to satisfy H-2A program requirements (e.g., the wage offer is less than
the highest of the wage sources
[[Page 47945]]
listed in 20 CFR 655.120(a), including the AEWR determination
applicable to the H-2A job opportunity), the CO will issue a Notice of
Deficiency alerting the employer to the issue and providing an
opportunity for the employer to amend its wage offer. If the employer
chooses not to amend its wage offer, the CO will deny the application
for failure to satisfy criteria for certification, and the employer may
appeal the final determination. If the SOC code assigned to the H-2A
job opportunity is material to the CO's final determination, the
employer may contest the SOC code assessment on appeal.
The Department anticipates the additional clarifying guidance
contained in this interim final rule regarding occupational
classification in the H-2A program will reduce the risk of CO or SWA
misclassification of job opportunities, ensure greater consistency and
predictability for employers to prepare their job offers, and provide
more accurate, market-based wages are used to determine the AEWRs that
protect the wages paid to agricultural workers in the H-2A program
reflect market wages paid to workers in the U.S. similarly employed.
D. The Department Will Determine a Single AEWR Covering the Five Most
Common Field and Livestock Worker (Combined) Occupations
Under the 2023 AEWR Final Rule, the Department determined a single
AEWR for any job opportunity where the duties to be performed cover one
or more of the following six SOC codes reported by the FLS: 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). In adopting this approach,
the Department reasoned that the broad, overlapping nature of tasks
listed in the Occupational Information Network (O*NET) for these six
field and livestock workers (combined) SOC codes is consistent with the
most common tasks performed by workers in agricultural operations and
the variety of duties employers may require of field and livestock
workers during a typical workday or intermittently during the period of
employment. Further, in response to public comments, the Department
concluded that establishing a single AEWR for this group of six SOC
codes provided a reasonable amount of flexibility with respect to the
type of duties a field and livestock worker may perform without added
recordkeeping, administrative burden, or uncertainty regarding wage
obligations.
Although this IFR affirms the policy decision to establish a single
AEWR covering the most common field and livestock worker (combined)
occupations, for the reasons stated below, the Department is making a
minor change to remove SOC code 45-2099, All Other Agricultural
Workers, from the AEWR computations. Specifically, the Department is
removing reference to the USDA FLS under 655.120(b)(1)(i) in
determining the AEWR for the field and livestock workers (combined)
category and concludes that this change will produce more accurate wage
estimates of workers in the United States performing agricultural work
that is encompassed by the most common field and livestock worker
(combined) occupations for which employers are seeking temporary
agricultural labor certification.
First, based on how the SOC system is administered, the employment
and wage information associated with workers classified within 45-2099,
All Other Agricultural Workers, represents too broad a spectrum of jobs
that are not common or prevalent in the agricultural labor market.
According to the BLS, for example, the SOC system is used ``to classify
workers and jobs into occupational categories for the purpose of
collecting, calculating, analyzing, or disseminating data.'' \162\ Jobs
within the labor market that have similar duties, and in some cases,
similar skills, education, and/or training, are organized into a
distinct detailed SOC code.\163\ Under the SOC system, workers are
assigned a SOC code based on the job duties or work tasks performed
and, in some cases, on the skills, education or training needed to
perform the work.\164\
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\162\ See 2018 SOC Manual, 1. Available at: https://www.bls.gov/soc/2018/soc_2018_manual.pdf.
\163\ Id.
\164\ Id. at 23.
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Because the goal of the SOC system is to classify all jobs into an
occupational classification where work is performed for pay or profit,
there are circumstances in which the duties and tasks performed by
workers are too diverse, less prevalent or emerging within the labor
market where assignment to a detailed occupation is not practicable.
When these circumstances occur and workers do not perform job duties
described in any distinct detailed occupation, the SOC system
classifies the worker's duties performed as one contained within an
``All Other'' SOC code.\165\ For example, the SOC code 45-2099,
Agricultural Workers, All Other, which broadly covers all agricultural
workers not otherwise captured by the more detailed SOC codes in the
entire 45-0000 series of farming, fishing, and forestry related
occupations, provides no sample job titles or any other detailed
description to understand what kind of field or livestock work duties,
if any, are being performed by workers and classified within this ``All
Other'' SOC code.
---------------------------------------------------------------------------
\165\ Id.
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Further, based on the May 2024 OEWS data release, the 45-2099 SOC
code only accounted for 4,980 jobs nationwide; approximately 1.1% of
the estimated 442,050 jobs in the 45-0000 series that encompasses all
farming, fishing, and forestry occupations. Similarly, according to the
FLS November 2024 annual report, the 45-2099 SOC code only accounted
for an average of 7,000-8,000 jobs nationwide; approximately 1.1% of
the estimated 710,000-720,000 field and livestock worker (combined)
employment during the July and October 2024 reference quarters. Thus,
the relevant data demonstrate that employment of workers classified
within this ``All Other'' SOC code are not common or prevalent within
the agricultural labor market.
Second, because the 45-2099, Agricultural Workers, All Other SOC
code covers a broad spectrum of jobs that are not common in the
agricultural labor market, the Department cannot effectively determine
whether an employer's job qualification(s) and requirement(s) to
perform work that could be classified under this SOC code and are
normal and accepted qualifications required by employers that do not
use H-2A workers in the same or comparable occupations and crops, as
required by statute and regulations. See 8 U.S.C. 1188(c)(3); 20 CFR
655.122(b). Specifically, O*NET, which is based on the SOC system and
collects detailed occupational data related to common work tasks,
skills, licensure, education, experience, and other job qualifications
and requirements, is an essential tool of independent worker-centric
information the Department has historically used to evaluate whether
the job qualifications and requirements contained in an employer's job
offer are normal and accepted qualifications required by employers that
do not use H-2A workers in the same or comparable occupations and
crops, as required by statute and regulations. See 8 U.S.C. 1188(c)(3);
20 CFR 655.122(b). Because the work performed contains too wide a range
of characteristics that do not fit
[[Page 47946]]
into any other detailed occupational code, the O*NET does not
consistently report such essential information for ``Agricultural
Workers, All Other'' that can be used to effectively determine
compliance with program requirements. Although the employer may be
required to submit documentation to substantiate the appropriateness of
any job qualification, the lack of such essential information in the
O*NET prevents the CO and the SWA from determining whether the
employer's documentation is sufficient to meet program requirements, as
there is no independent source of data the CO and the SWA can use to
assess any particular job qualification or requirement specified in the
employer's job offer.
Finally, due to the way the SOC coding system is administered and
the lack of essential information in O*NET to assess whether job
qualifications or requirements specified in the employer's job offer
meet program requirements, the 45-2099, Agricultural Workers, All Other
SOC code offers very little practical utility for OFLC and the SWA with
respect to classifying the duties or work tasks for which employers are
requesting temporary labor certification. Based on a review of public
H-2A labor certification records submitted under the 2023 AEWR Final
Rule on and after April 1, 2023, through March 30, 2025, OFLC issued
44,014 temporary agricultural labor certifications covering more than
742,600 worker positions classified within approximately 75 different
SOC codes. Of these totals, only 20 H-2A labor certification records
covering 125 worker positions were granted temporary agricultural labor
certification where the duties or work tasks to be performed were
classified as SOC 45-2099, Agricultural Workers, All Other. However,
based on careful quality review of these H-2A labor certification
records, each of these applications were improperly coded by OFLC and
the SWA and the duties or work tasks to be performed should have been
more appropriately classified within one of the detailed occupations
within the SOC system. Therefore, the change being made through this
IFR should have little to no impact on the wages required to be paid to
H-2A workers and other workers in corresponding employment.
Thus, based on how the SOC coding system is administered, relevant
data, and the experience of OFLC processing employer job orders in the
H-2A program, the Department concludes that employment and wage
information associated with workers classified within SOC code 45-2099,
All Other Agricultural Workers, does not provide practical utility for
its continued use in the field and livestock workers (combined)
category due to the broad spectrum of unknown duties and tasks
performed by workers classified within this SOC code. In addition, due
to the significantly small percentage of employment this SOC code
represents within the agricultural labor market, the Department
concludes that the removal of this SOC code will not have an adverse
effect on the amount of flexibility an employer needs with respect to
the type of duties a field and livestock worker may perform without
added recordkeeping, administrative burden, or uncertainty regarding
wage obligations. Even with the removal of SOC code 45-2099
(Agricultural Workers, All Other), the Department maintains that each
of the remaining five SOC codes constituting field and livestock
workers (combined) already encompass a wide array of work tasks and
responsibilities, some of which overlap and mutually support one
another (i.e., the same or substantially similar duties, requirements,
or tools are included in more than one of the five SOC codes).
Accordingly, under this IFR, the Department has modified paragraph
(b)(1)(i)(A) to state that it will determine a single statewide AEWR at
two skill levels for any job opportunity where the duties to be
performed cover one or more of the following five SOC codes
representing the field and livestock workers (combined) category:
Farmworkers and Laborers, Crop, Nursery and Greenhouse Workers (45-
2092); Farmworkers, Farm, Ranch, and Aquacultural Animals (45-2093);
Agricultural Equipment Operators (45-2091); Packers and Packagers, Hand
(53-7064); and Graders and Sorters, Agricultural Products (45-2041). In
the rare circumstances in which there is no statewide wage reported by
OEWS field and livestock workers (combined) category, the Department
will use the national annual average gross hourly wage reported by the
OEWS for the particular SOC code and skill level, which will ensure an
AEWR determination can be made each year. Thus, the Department has also
revised paragraph (b)(1)(i)(B) to reflect use of a national annual
average gross hourly wage reported by the OEWS in these circumstances
and, with this modification, has removed paragraph (b)(1)(i)(C).
E. The Department Will Determine a SOC-Specific AEWR for All Other
Occupations
For H-2A job opportunities that do not fall within the five SOC
codes that constitute the field and livestock workers (combined)
category, the Department will use the OEWS survey to determine SOC-
specific AEWRs. Under this IFR and as described in revised paragraph
(b)(1)(ii)(A), the AEWRs at two skill levels for all non-range SOC
codes where the primary duties, including those duties that are
directly and close related, that fall outside the field and livestock
workers (combined) category will be the statewide annual average hourly
gross wage for the SOC code, as reported by the OEWS survey. If the
OEWS survey does not report a statewide annual average hourly gross
wage for the SOC code and at the skill level, as described in paragraph
(b)(1)(ii)(B), AEWR for that State and skill level will be the national
annual average hourly gross wage for the SOC code, as reported by the
OEWS survey.
As previously discussed, the OEWS has practical utility to the
agency in circumstances where the agricultural labor or services to be
performed qualify under the H-2A program but are not adequately
represented by the five most common field and livestock worker
(combined) occupational wages. For instance, as discussed in the 2023
AEWR Final Rule, the OEWS is a useful wage source for those occupations
that constitute a small percentage of agricultural labor or services
and a larger subset of non-agricultural labor or services (e.g.,
construction workers) or provide agricultural support services to farms
(e.g., farm equipment mechanics) or where the work is generally not
performed on farms or ranches such that wages are not representative of
those covered by the most common farm and livestock worker (combined)
occupations (e.g., logging occupations). These positions are often
filled as contract positions through non-farm establishments, rather
than direct on-farm hired positions, for which the OEWS survey
consistently covers in its sampling frames, and for which the cross-
industry reach of this survey inherently covers the same or
substantially similar work both in and outside the agricultural sector.
And finally, H-2ALC participation in the H-2A program has grown
significantly since 2010 and the employment of H-2A workers by non-farm
establishments remains a high percentage of all H-2A
[[Page 47947]]
worker positions certified by the Department.\166\
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\166\ A recent Government Accountability Office (GAO) report
noted that ``from FY 2020 through FY 2023, direct-hire employers
submitted most of the applications (84 percent, on average) that
OFLC approved, which accounted for 57 percent of the jobs approved
during the period. Farm labor contractors (FLC) submitted 15 percent
of approved applications and accounted for 42 percent of the jobs
approved during the period.'' GAO further found ``that the average
number of jobs per approved application was over four times higher
for FLCs (54 jobs) when compared to direct-hire employers (13
jobs).'' Government Accountability Office, H-2A Visa Program:
Agencies Should Take Additional Steps to Improve Oversight and
Enforcement, GAO-25-106389 (Nov. 14, 2024). More recently and based
on a review of H-2A applications covering all agricultural sectors
certified by OFLC covering October 1, 2023, through June 30, 2025,
the proportion of H-2A worker positions certified for employers
operating as H-2ALCs remained high. In FY 2024, of the 384,865
worker positions certified nationally, 163,844 (or 43 percent) were
issued to H-2ALCs. From October 1, 2024, through July 1, 2025, for
FY 2025, of the 317,459 worker positions certified nationally,
134.209 (or 42.3 percent) were issued to employers operating as H-
2ALCs. See https://www.dol.gov/agencies/eta/foreign-labor/performance (accessed July 28, 2025).
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As discussed previously, the available program data supports the
Department's determination that OEWS wage data collected from non-farm
establishments, such as farm labor contractors or H-2ALCs, who employ
workers to perform duties not covered by the five field and livestock
workers (combined) category SOC codes, is an appropriate source of
actual market wages in agriculture to determine the AEWRs for all other
SOC codes. The Department's decision to expand the OEWS survey to cover
farm establishments will further strengthen the survey for positions
that are outside the field and livestock worker (combined) SOC codes by
ensuring that the employment and wages associated with any direct on-
farm employees are incorporated into the annual wage estimates. The
more robust employment and wage estimates resulting from this expansion
will have a corollary benefit of enhancing the accuracy of prevailing
wage determinations in the H-2B temporary non-agricultural labor
certification program, and other nonimmigrant and immigrant programs,
where workers are performing the same or substantially similar work for
employers who otherwise cannot qualify under the H-2A program and where
prevailing wage determinations are predominantly based on the wages
collected from non-farm establishments. Where the primary duties,
including those duties closely and directly related, fall outside the
five field and livestock worker (combined) category, the Department
recognizes that the AEWRs determined for these SOC codes, even at two
skill levels, may result in higher wages, depending upon geographic
location and the specific SOC code. These relatively higher AEWRs,
however, will most likely be the result of administering a more robust
and accurate set of occupational data from the OEWS that is better
representative of the actual wages paid to workers in these relatively
higher skill jobs, and thus will provide appropriate protection against
adverse effect.
Finally, the Department will continue to determine the AEWRs for
the SOC covering a statewide geographic area. In the temporary
nonimmigrant and permanent immigrant programs, the Department generally
establishes prevailing wages based on the OEWS for the SOC in one or
more metropolitan or non-metropolitan areas or statewide in
circumstances where localized prevailing wages cannot be reported due
to small sample sizes. For the H-2A program, however, the Department
will use a statewide wage both to more closely align with the
geographic areas historically used by the Department under the H-2A
program and to protect against potential wage depression from a large
influx of nonimmigrant workers that is most likely to occur at the
local level.
As explained in prior rulemakings, the concern about localized wage
depression is more pronounced in the H-2A program due to both the
vulnerable nature of agricultural workers and the fact that the H-2A
program is not subject to a statutory cap, which allows a potentially
unlimited number of nonimmigrant workers to enter a given local
area.\167\ In the rare circumstances in which there is no statewide
wage, use of the national annual average gross hourly wage reported by
the OEWS for the particular SOC code and skill level will ensure an
AEWR determination can be made each year for each SOC code outside of
the field and livestock workers (combined) category.
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\167\ See, e.g., 75 FR at 6895.
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F. The Department Will Establish a Standard AEWR Adjustment To Account
for Non-Wage Compensation Benefits Provided to H-2A Workers
Under this IFR, the Department is implementing a standard downward
adjustment to the hourly AEWRs that accounts for the compensation
disparity U.S. workers face when H-2A workers are being paid for work
performed under the same work contract but, unlike most U.S. workers,
receive additional non-wage compensation in the form of free housing.
Those U.S. workers who are reasonably able to return to their permanent
places of residence at the end of each workday, must continue to bear
these essential costs from their wages, despite often being offered and
often paid the same wages as H-2A workers. Thus, the result is an
adverse disparity in compensation where the effective wage rate of U.S.
workers is lower than that mandated for H-2A workers under the same
work contract, which the Department views as prohibited by the statute
that this IFR seeks to correct.
The evidence available to the Department supports a conclusion that
U.S. workers face significant burdens for housing costs from their
earned wages. Specifically, domestic farm workers face significant
challenges finding and maintaining affordable housing. Rural housing
that is close in proximity to agricultural operations is often in short
supply and decades of underdevelopment and regulatory requirements have
contributed to rising costs, and available evidence demonstrates that
this situation is placing an increasing burden on domestic farmworker
family incomes. Due to the unique nature of agricultural work,
employers face significant costs investing in housing units for
temporary workers that may only be used during specific seasons of the
year and, where H-2A workers are employed, employers are required to
provide housing at no charge to H-2A workers and any migrant domestic
farm workers. See 20 CFR 655.122(d)(1). Unfortunately, local domestic
farmworkers, who may want to seek out temporary agricultural jobs where
H-2A workers will be employed, are competing in an uneven playing field
as they must accept employment under at least the same terms of the
work contract--often at the same wage--while continuing to pay and
maintain their own housing out of their earned wages. Therefore, as
discussed in detail below, the Department seeks to address this adverse
compensation effect due to the importation of H-2A workers while
ensuring that the wage offers to any U.S. workers to perform the same
agricultural labor or services are protected.
While it is challenging to obtain accurate data, the most recent
data from the NAWS offers some practical evidence in favor of a wage
policy that can account for the adverse compensation effect domestic
farm workers face when H-2A workers are admitted into the United States
to perform the same agricultural labor or services and provided housing
at no cost. In 2021-2022, approximately 90 percent of crop workers
reported living in housing not owned or administered
[[Page 47948]]
by their current employer, and only 7 percent of crop workers who do
not migrate live in employer-provided housing free of charge. In fact,
even among crop workers who migrate, only 12 percent reported living in
employer-provided housing free of charge, signaling that the vast
majority of crop workers across the United States pay for their housing
costs, including those that cannot return to their primary residence
after the end of the workday.\168\
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\168\ Findings from the National Agricultural Workers Survey
(NAWS) 2021-2022: A Demographic Employment Profile of United States
Crop Workers (Sept. 2023), pg. 20-21.
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Among crop workers who reported paying for their housing,
approximately 61 percent paid $600 or more per month, 21 percent paid
$400-599 per month, and another 56 percent interviewed reported living
in housing rented from someone other than their employer (e.g., non-
employer or non-relative).\169\ With more than 85 percent of crop
workers reporting an hourly wage as the basis for their pay and earning
an average of $14.53 per hour,\170\ the available evidence from the
NAWS demonstrates that the majority of crop workers are paying the
equivalent of $138 per week ($600 housing cost per month divided by
4.345 weeks per month) or $3.45 per hour of their average hourly wage
($138 per week divided by 40 hours of work per week) for their housing.
Housing is generally considered affordable when a person spends 30
percent or less of their income on housing. With nearly 41 percent of
crop workers reportedly earning less than $25,000 annually and most
paying more than $600 or more per month, domestic farm workers are
experiencing a significant housing cost burden that is not similarly
born by H-2A workers.
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\169\ Id. at pg. 22, 84.
\170\ Id. at pg. 3.
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Other available reports and studies covering specific state or
local areas also support the conclusion that housing poses a
significant cost burden on the earnings of domestic farm workers. For
example, based on an assessment of historical NAWS data and a survey of
farm workers, the Housing Assistance Council (HAC) found that farm
workers face challenges locating and retaining affordable housing.
Specifically, due to their low wages, HAC found that farm workers pay a
median monthly housing cost of approximately $380 with ``approximately
34 percent of these farmworkers were cost-burdened, paying more than 30
percent of their monthly income for housing. Among all surveyed cost-
burdened households, over 85 percent included children.'' \171\ Within
California, the National Farm Worker Ministry, which is a faith-based
organization dedicated to advancing the rights of farm workers,
recently observed that in ``Santa Maria, Santa Barbara County,
California, an area with a high number of farm workers, the median rent
was $2,999 in March 2024. The average annual pay of a farm worker in
Santa Barbara County in 2024 was $41,031 or $82,062 per year for two
working parents. This means half of a family's income is going towards
rent.'' \172\
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\171\ Housing Assistance Council, No Refuge from the Fields, a
report of HAC's farmworker housing survey, available at https://www.ruralhome.org, (last visited August 10, 2025).
\172\ National Farm Worker Ministry, Issues Affecting Farm
Workers: Housing, available at https://nfwm.org/farm-workers/farm-worker-issues/housing. (last visited August 10, 2025).
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In another study measuring the impact of housing on domestic farm
workers conducted by the University of California at Davis, economists
utilized a 5-year sample from the American Community Survey to identify
farm workers by industry and occupation for the purpose of measuring
housing affordability at the state and county in California for
comparison to the NAWS data. These economists found that ``sixty-seven
percent of farmworker families live in rented housing units, and 27.5
percent are severely rent burdened paying more than 50 percent of their
income. We find that 54.5 percent of farmworker families are rent cost
burdened.'' \173\ And finally, in a 2023 report sponsored by the Oregon
Housing and Community Services, researchers conducted a survey of farm
workers in Hood River, Marion, Morrow, and Yamhill counties of Oregon
and found that ``nearly all farmworker households are cost burdened''
by housing across the four counties.\174\
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\173\ Alexis Vivas Flores and Timothy Beatty, Measuring Housing
Affordability for Domestic Farmworkers in California: Are They
Facing a Housing Affordability Crisis?, Selected Paper prepared for
presentation at the 2024 Agricultural & Applied Economics
Association Annual Meeting, New Orleans, LA, July 28-30, 2024,
available through AgEcon Search at http://ageconsearch.umn.edu (last
visited August 10, 2025).
\174\ Jamie Stamberg, Beth Goodman, Jennifer Cannon, and Ariel
Kane, Cultivating Home: A Study of Farmworker Housing (Oregon:
Oregon Housing and Community Services, May 2023). The researchers
note that, on average, farmworker households have incomes of between
approximately 25 percent and 37 percent of the Median Family Income
(MFI) covering this geographic area, and typically, a household
needs to earn about 60% of MFI to afford market-rate rent. This fact
alone led the researchers to conclude that nearly all farmworker
households were cost-burdened by their housing.
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Employers have likewise cited the high costs associated with the
employment of H-2A workers as one of the primary challenges to using
the program. The employment of H-2A workers is generally more costly
than hiring local domestic farm workers due to the other program costs
and non-wage compensation benefits employers provide, which includes
paying for transportation from the foreign worker's home country and
return, daily transportation of foreign workers from housing to the
worksites, and the costs associated with housing H-2A workers. These
costs and non-wage compensation benefits provided to H-2A workers,
which are not afforded to local U.S. workers, are above and beyond
paying H-2A workers at least the hourly AEWR, which is almost always
greater than federal and state minimum wage rates and often greater
than any local or regional market-based wages for similar agricultural
work.
Given the evidence presented that U.S. workers face an adverse
compensation effect relative to the employment of H-2A workers, who are
provided housing at no charge, the Department is adopting a standard
adjustment factor to the AEWRs that accounts for this non-monetary
compensation benefit. Specifically, under 20 CFR 655.120(b)(3) of this
IFR, the OFLC Administrator is establishing a downward annual AEWR
compensation adjustment factor for each State, which can only be
applied to H-2A workers sponsored under the Application for Temporary
Employment Certification, and computed as an equivalent hourly rate
based on the weighted statewide average of Fair Market Rents (FMRs) for
a four-bedroom housing unit available from the Department of Housing
and Urban Development (HUD).\175\ Further, to ensure this downward
adjustment is reasonable and not unduly burdensome on the earnings of
H-2A workers, the standard hourly adjustment factor will not exceed 30
percent of the hourly AEWR determined for the employer's job
opportunity. The policy rationale behind the 30 precent standard
adopted in this IFR is to ensure the AEWRs that will apply to H-2A
workers are set at a level that best approximates the maximum value of
compensation these workers may be provided by employers related to
their housing. Within federal
[[Page 47949]]
housing programs, this standard is a widely accepted benchmark for
defining housing affordability and identifying households experiencing
housing cost burden.\176\ Within its Section 8 Housing Choice Voucher
Program, HUD uses this standard as a basis for paying housing subsidies
where program beneficiaries pay a limited percentage of their adjusted
gross incomes (i.e., typically 30 percent) for rent, with the balance
of the rent paid by the federal program. And finally, to ensure
employers continue to offer and pay any U.S. worker the full market-
based AEWR determined under 20 CFR 655.120(b)(1)(i) and (ii), the
standard hourly adjustment factor will only apply to the AEWR
established separately for H-2A workers sponsored under the Application
for Temporary Employment Certification.
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\175\ The Department recognizes that some U.S. workers in
corresponding employment may reside in H-2A employer-provided
housing but believes that such circumstances are uncommon and these
workers face similar adverse compensation effects as local U.S.
workers. Accordingly, the Department will not apply the downward
adjustment to the AEWR for non-H-2A workers, even if these workers
reside in employer-provided housing.
\176\ See McCarty, Maggie and Daniels, Mary and Keightley, Mark,
``Housing Cost Burdens in 2023: In Brief,'' Congressional Research
Service, Report No. R48450 (March 11, 2025). The report notes that
``federal housing policies typically deem housing to be
``affordable'' if it costs no more than 30% of family income
(adjusted for family size). According to this metric, families that
pay more are considered to be `cost burdened,' and those that pay
more than half of their incomes are considered `severely cost
burdened.' '' For a more comprehensive discussion on the history of
the 30 percent standard, see Pelletiere, Danilo and Pelletiere,
Danilo, Getting to the Heart of Housing's Fundamental Question: How
Much Can a Family Afford? A Primer on Housing Affordability
Standards in U.S. Housing Policy. Available at SSRN: https://ssrn.com/abstract=1132551 or http://dx.doi.org/10.2139/ssrn.1132551.
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In establishing this annual adverse compensation adjustment, the
Department is relying on the weighted statewide average of Fair Market
Rents (FMRs) for a four-bedroom housing unit available from HUD. FMRs
represents the most comprehensive and reliable data on housing rental
costs and are consistently published annually by HUD's Office of Policy
Development and Research, in collaboration with the Economic and Market
Analysis Division, using a combination of local surveys and the
American Community Survey (ACS). For its low-income affordable housing
programs, HUD establishes FMRs at various percentiles, including the
50th, percentile of gross rents, taking into account both rent and the
cost of necessary utilities (except telephone, cable or satellite
television, and internet services).\177\ With limited exceptions, HUD
provides estimates for FMRs for all OMB-defined Metropolitan
Statistical Areas (MSAs) and any non-metropolitan area counties, which
provides the Department with the most comprehensive set of data upon
which to estimate the average rental payments for housing. Because 56
percent of U.S. crop workers interviewed for the 2021-2022 NAWS
reported living in housing rented from someone other than their
employer (e.g., non-employer or non-relative), the Department can
conclude that FMRs available through HUD represents the most reasonable
source of housing data to use in computing an annual adverse
compensation adjustment under this IFR.
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\177\ Fair Market Rents (FMRs) are used to determine payment
standard amounts for the Housing Choice Voucher program, initial
renewal rents for some expiring project-based Section 8 contracts,
initial rents for housing assistance payment (HAP) contracts in the
Moderate Rehabilitation Single Room Occupancy program (Mod Rehab),
rent ceilings for rental units in both the HOME Investment
Partnerships program and the Emergency Solutions Grants program,
maximum award amounts for Continuum of Care recipients and the
maximum amount of rent a recipient may pay for property leased with
Continuum of Care funds, and flat rents in Public Housing units. For
a more information, see the HUD Office of Policy Development and
Research website at https://www.huduser.gov/portal/datasets/fmr.html. (last visited August 11, 2025).
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The Department notes that HUD publishes population-weighted FMR's
for one-bedroom, two-bedroom, three-bedroom or four-bedroom housing
units covering all MSA and non-MSA areas. The Department is adopting
FMRs associated with 4-bedroom housing units with a reasonable
assumption of 2 beds per room for a maximum occupancy capacity of 8
individuals. The selection of this housing unit size and capacity is
consistent with the average occupancy per housing unit in the H-2A
program. Based on an analysis of H-2A housing data associated with
labor certification applications processed from FY 2020 through FY
2024, the average occupancy capacity per housing unit, which includes
all forms of housing, was approximately 7 to 8 individuals.\178\ The
adjustment value per week will be calculated by dividing the applicable
weighted average statewide FMR (at the 50th percentile) by 4.345
(average number of weeks per month), and then the proceeding value will
be divided by 8 (assumption of two workers per bedroom in a four-
bedroom home). The adjustment per worker per week will then be divided
by 40 hours (industry adopted standard work week) to arrive at the
hourly adjustment rate. This hourly adjustment rate will be subtracted
from the appropriate AEWR (depending on state, SOC code, and experience
level) to arrive at the final hourly rate to be applied each pay
period. In addition, the Department is adopting an average FRM across
each state because employer-provided housing for workers employed under
temporary agricultural labor certifications are commonly located in
non-metropolitan and metropolitan statistical areas. For example, among
employers in the 10 largest states employing H-2A workers during FY
2024, more than 67 percent of all housing units used to house
approximately 60 percent of all H-2A workers were located in
metropolitan statistical areas while the remaining 33 percent were
located in rural non-metropolitan statistical areas.\179\
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\178\ Based on OFLC public disclosure data, the Department has
computed the following: FY 2020, 15,191 housing records covering
45,552 units at 379,114 occupancy capacity for an estimated 8
persons per unit; FY 2021, 19,212 housing records covering 74,367
units at 472,506 occupancy capacity for an estimated 6 persons per
unit; FY 2022, 22,299 housing records covering 77,088 units at
536,238 occupancy capacity for 7 persons per unit; FY 2023, 22,716
housing records covering 67,515 units at 528,784 occupancy capacity
for 8 persons per unit; and FY 2024, 26,998 housing records covering
77,464 units at 600,582 occupancy capacity for 8 persons per unit.
See https://www.dol.gov/agencies/eta/foreign-labor/performance (last
visited August 11, 2025).
\179\ During FY 2024, more than 67 percent of all certified H-2A
worker positions and employer-provided housing for these workers
were in metropolitan statistical areas across the following 10
largest states using the H-2A program: Florida (75 percent or 11,979
units with a maximum occupancy of 90,837 persons); Georgia (12
percent or 342 units with a maximum occupancy of 4,698 persons);
California (97 percent or 3,765 units with a maximum occupancy of
21,716 persons); Washington (71 percent or 9,661 units with a
maximum occupancy of 74,112 persons); North Carolina (51 percent or
3,062 units with a maximum occupancy of 30,398 persons); Michigan
(49 percent or 1,437 units with a maximum occupancy of 11,787
persons); Louisiana (71 percent or 847 units with a maximum
occupancy of 9,804 persons); Texas (19 percent or 413 units with a
maximum occupancy of 2,123 persons); Arizona (97 percent or 2,549
units with a maximum occupancy of 13,579 persons); and New York (79
percent or 831 units with a maximum occupancy of 8,196 persons).
Based on an analysis of public H-2A labor certification records from
the DOL Office of Foreign Labor Certification at https://www.dol.gov/agencies/eta/foreign-labor/performance.
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Although precise and local market-based data specific to the costs
of temporary agricultural housing in rural areas is limited, the
Department believes that the FMRs serve as a reasonable proxy for
estimating housing costs. While FMRs vary across any given state, most
agricultural workers are typically mobile across a wide area of
intended employment, which often covers a number of counties, and the
complexities associated with estimating multiple local area based FMRs
would make such an option almost impracticable for the Department to
administer and enforce. Of note, HUD publishes the FMRs at both the
40th and 50th percentiles. Although HUD utilizes the 40th percentile
for purposes of administering its housing voucher programs, the
Department has chosen in this IFR to use the statewide average of
[[Page 47950]]
the 50th percentile FMRs, as calculated by HUD, and weighted based on
state population. This methodological approach reasonably reflects the
central tendency of FMRs across a given state without being influenced
by outliers in certain local or regional area housing costs and is an
easily understood statistical concept. As such, the Department proposes
using a statewide average FMR to set a uniform ``adverse effect
adjustment'' to the AEWRs. This will provide H-2A employers within a
given state or region, with a predictable, consistent rate that better
accounts for non-wage compensation.
The Department recognizes that 20 CFR 655.122(d)(1) currently
requires that employers ``provide housing at no cost to the H-2A
workers and those workers in corresponding employment who are not
reasonably able to return to their residence within the same day.''
Unlike the statute's express mandate that the Secretary deny labor
certification to employers who fail to provide workers' compensation
insurance at no cost to the worker, no similar statutory mandate exists
with respect to the provision of housing. Compare 8 U.S.C. 1188(b)(3)
with 8 U.S.C. 1188(c)(4). Rather, Section 218(c)(4) of the INA, 8
U.S.C. 1188(c)(4), requires only that H-2A employers ``furnish housing
in accordance with regulations'' and permits them to satisfy this
obligation either by providing housing that meets applicable Federal
temporary labor camp standards or by securing housing that meets local
rental or public accommodation standards. The statute does not
expressly require that such housing be provided at no cost to the
worker as a condition of labor certification.
However, given the evidence presented in this IFR that U.S. workers
face adverse effect in their wages relative to H-2A workers who are
provided housing at no charge, the Department is adopting a standard
adjustment factor to the AEWRs to account for this non-monetary
compensation benefit. The Department clarifies that this downward AEWR
adjustment factor, computed annually for each State under 20 CFR
655.120(b)(3), is not inconsistent with Sec. 655.122(d)(1). The
adjustment does not authorize an employer to charge workers rent or
otherwise deduct housing costs from the wages of H-2A workers or of
workers in corresponding employment who are not reasonably able to
return to their residence within the same day. Rather, it ensures that
the AEWR reflects the value of this non-wage compensation benefit, so
that the effective level of compensation does not create adverse effect
on the wages of U.S. workers similarly employed, consistent with 8
U.S.C. 1188(a)(1)(B).
In adopting this approach, the Department also invites public
comment on whether the regulatory ``no cost'' mandate under Sec.
655.122(d)(1) remains appropriate in light of the rising costs and
other obstacles (e.g., zoning restrictions, permits) faced by employers
in locating sufficient and affordable worker housing. The Department
also seeks comment on whether alternative approaches would better align
with the statutory text while continuing to ensure that the wages of
U.S. workers similarly employed are not adversely affected by the
employment of H-2A workers.
G. The Department Will Publish OEWS-Based AEWRs To Coincide With the
BLS Publication Schedule
Under the 2023 AEWR Final Rule, the OFLC Administrator was required
to publish, at least once in each calendar year, on a date to be
determined by the OFLC Administrator, an update to each AEWR as a
notice in the Federal Register. The OFLC Administrator published the
updated AEWRs through two announcements in the Federal Register, one
for the FLS-based AEWRs (i.e., effective on or about January 1) and a
second for the OEWS-based AEWRs (i.e., effective on or about July 1),
due to the different time periods for release of these two wage
surveys. The publication of two distinct AEWR updates within a single
calendar year cycle, combined with other regulatory requirements (e.g.,
payment of the highest AEWR across all applicable SOC codes regardless
of time spent performing any duty), created burden and costs on some
employers with respect to their wage obligations to workers.
Given the policy decision to determine the AEWRs for all H-2A job
opportunities using occupational wage data reported by the OEWS, the
Department will now simplify publication of the updated AEWRs for non-
range occupations through a single Federal Register Notice on or about
July 1 each year. Although the Department typically discloses updated
OEWS data on the BLS website in May each year, the BLS requires a short
amount of time to create customized wage data files that are required
by the OFLC Administrator to administer the revised AEWR methodology in
this IFR and the prevailing wage requirements covering other immigrant
and nonimmigrant employment-based visa programs.
In addition, with the adoption of an annual statewide AEWR
compensation adjustment for housing that is provided to H-2A workers at
no charge, the Department will align the timeframes for obtaining the
FMR data from HUD and computing the statewide equivalent hourly rates
for publication in the same notice in the Federal Register as the
AEWRs. Accordingly, the Department has made minor modifications to 20
CFR 655.120(b)(4) to state that the OFLC Administrator will publish a
notice in the Federal Register, at least once in each calendar year, on
a date to be determined by the OFLC Administrator, establishing each
AEWR and corresponding housing compensation adjustment for each State
that will become effective as of the date of publication of the notice
in the Federal Register.
H. The Department Requests Comments on All Aspects of Its Revised
Methodology for Establishing the AEWRs
The Department invites comments on all aspects of the AEWR
methodology changes contained in this IFR. In particular, the
Department is interested in comments on the use of the OEWS and the
combined use of occupational wages collected for farm and non-farm
establishments through the OEWS, determining the AEWRs at two skills
levels based on job qualifications and the thresholds (the lower one-
third and the average wage); the conditions for assigning the most
representative SOC code based on the primary and directly and closely
related duties and qualifications contained in the employer's job
offer, including any alternative sources of reliable and comprehensive
occupational information beyond the O*NET system; modifying the most
common field and livestock workers (combined) occupations for assigning
a single AEWR by removing SOC code 45-2099, Agricultural Workers All
Other; and the use of a non-wage compensation factor, the
specifications for adopting a standard non-wage compensation adjustment
factor to the AEWR that employers may offer only to H-2A workers
provided housing at no charge, the data source used to establish the
adjustment factor, and the level at which the adjustment factor has
been sent. Comments supported by reliable and objective data or other
quantifiable studies will be more helpful to the Department in drafting
a final rule than comments consisting of qualitative anecdotal
evidence. The Department is open to making changes in the final rule
based on the comments it receives on this IFR.
[[Page 47951]]
V. Severability
To the extent that any portion of this IFR is declared invalid or
unenforceable by a court, the Department intends for all other parts of
this IFR that can operate in the absence of the specific portion that
has been invalidated, to remain in effect. Thus, the Department notes
that the existing severability clause under 20 CFR 655.190 \180\
applies because each provision within this IFR is capable of operating
independently from one another. The assignment of the SOC code(s) for
the employer's job opportunity specified at 20 CFR 655.120(b)(7), which
involves a comparison the duties and qualifications contained in the
job order to the SOC definitions, skill requirements, and tasks that
are listed in the O*NET system, is an independent assessment performed
by the SWA and the CO before determining the applicable AEWR and that
assessment has no impact on the actual computation of the AEWRs by the
BLS. Further, computation of the AEWRs at two skill levels, as
specified in 20 CFR 655.120(b)(2), using the OEWS survey is a
statistical process conducted by the BLS annually that is independent
of any other provision contained in this IFR. And finally, the standard
adjustment factor to the AEWRs specified at 20 CFR 655.120(b)(3) is
based on annual data obtained from HUD and used to independently
compute an equivalent hourly rate based on the weighted statewide
average of FMRs for a four-bedroom housing unit. The implementation of
these statewide equivalent hourly rate adjustments, which apply only to
the minimum wages offered to H-2A workers, has no influence on the
assignment of the SOC code(s) by the SWA and the CO for the employer's
job opportunity and does not affect the computation of the AEWRs by the
BLS.
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\180\ The Department acknowledges that it has proposed retaining
the severability provision in the Notice of Proposed Rulemaking,
Recission of Final Rule: Improving Protections for Workers in
Temporary Agricultural Employment in the United States, published
July 2, 2025. 90 FR 28919. The Department will review any relevant
comments received in connection with that NPRM and, prior to
finalizing, will consider whether any changes or amendments need to
be made to the provision. As described below, however, the existing
655.190 applies to this IFR because each provision is capable of
operating independently from one another.
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Thus, even if a court decision invalidating a portion of this IFR
results in a partial reversion to the current regulations or to the
statutory language itself, the Department intends that the rest of this
IFR continue to operate, to the extent possible, in tandem with the
reverted provisions, as specified in 20 CFR 655.190. It is the
Department's intent that the remaining provisions of the regulations
should continue in effect if any provision or provisions are held to be
invalid or unenforceable. It is of great importance to the Department
and the regulated community that even if a portion of this IFR were
held to be invalid or unenforceable that the larger program could
operate consistent with the expectations of employers and workers.
VI. Administrative Information
A. Executive Order 12866: Regulatory Planning and Review, Executive
Order 13563: Improving Regulation and Regulatory Review, and 14192
(Unleashing Prosperity Through Deregulation)
1. Introduction
Under E.O. 12866, the Office of Information and Regulatory Affairs
(OIRA) in the Office of Management and Budget (OMB) determines whether
a regulatory action is significant and, therefore, subject to the
requirements of the Executive Order and review by OMB. Regulatory
Planning and Review, 58 FR 51735 (Oct. 4, 1993). Section 3(f) of E.O.
12866 defines a ``significant regulatory action'' as an action that is
likely to result in a rule that may: (1) have an annual effect on the
economy of $100 million or more, or adversely affect in a material way
the economy, a sector of the economy, productivity, competition, jobs,
the environment, public+ health or safety, or State, local, or Tribal
governments or communities; (2) create a serious inconsistency or
otherwise interfere with an action taken or planned by another agency;
(3) materially alter the budgetary impact of entitlement, grants, user
fees, or loan programs or the rights and obligations of recipients
thereof; or (4) raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order. A regulatory impact analysis (RIA) must be
prepared for a regulatory action that is significant under section
3(f)(1). OIRA has reviewed this rule and designated it a significant
regulatory action under 3(f)(1) of E.O. 12866.
The Secretary of Homeland Security, in consultation with the
Secretary of Labor and Secretary of Agriculture, has approved this rule
consistent with section 301(e) of the Immigration Reform and Control
Act of 1986, 8 U.S.C. 1188.\181\
---------------------------------------------------------------------------
\181\ Although this provision vests approval authority in the
``Attorney General,'' the Secretary of Homeland Security now may
exercise this authority. See 6 U.S.C. 202(3)-(4), 251, 271(b), 291,
551(d)(2), 557; 8 U.S.C. 1103(c) (2000).
---------------------------------------------------------------------------
E.O. 13563 directs agencies to, among other things, propose or
adopt a regulation only upon a reasoned determination that its benefits
justify its costs; the regulation is tailored to impose the least
burden on society, consistent with achieving the regulatory objectives;
and in choosing among alternative regulatory approaches, the agency has
selected those approaches that maximize net benefits. Improving
Regulation and Regulatory Review, 76 FR 3821, 3821 (Jan. 21, 2011),
E.O. 13563 recognizes that some costs and benefits are difficult to
quantify and provides that, where appropriate and permitted by law,
agencies may consider and discuss qualitative values that are difficult
or impossible to quantify, including equity, human dignity, fairness,
and distributive impacts. Id.
This IFR also furthers the goals of E.O. 14192, Unleashing
Prosperity Through Deregulation.\182\ In relevant part, the E.O.
articulates the executive branch policy to ``be prudent and financially
responsible in the expenditure of funds, from both public and private
sources, and to alleviate unnecessary regulatory burdens placed on the
American people.'' This executive branch policy is advanced by federal
agencies reassessing their regulations and eliminating unnecessary and
burdensome requirements that are not squarely authorized by Federal law
to ``significantly reduce the private expenditures required to comply
with Federal regulations to secure America's economic prosperity and
national security and the highest possible quality of life for each
citizen.'' \183\ Specifically, the E.O. directs federal agencies,
including the Department, to ``ensure that the total incremental cost
of all new regulations, including repealed regulations, being finalized
this year, shall be significantly less than zero, as determined by the
Director of the Office of Management and Budget (Director), unless
otherwise required by law or instructions from the Director.'' \184\
This IFR is expected to be an E.O. 14192 deregulatory action,
generating $$246 million in annual cost savings (taking the form of
reduced deadweight loss). The primary purpose of this IFR is to
implement or interpret the immigration laws of the United States (as
described in section 101(a)(17) of the INA, 8 U.S.C. 1101(a)(17)) or
any other function
[[Page 47952]]
performed by the United States Federal Government with respect to
aliens.\185\
---------------------------------------------------------------------------
\182\ See 90 FR 9065 (Jan. 31, 2025).
\183\ Id. sec. 1.
\184\ Id. sec. 3(b).
\185\ See OMB Memorandum M-25-20, Guidance Implementing Section
3 of Executive Order 14192, titled ``Unleashing Prosperity Through
Deregulation'' at 5-6 (Mar. 26, 2025).
---------------------------------------------------------------------------
2. Summary of the Analysis
The Department estimates that the IFR will result in costs and
transfers. It also anticipates the IFR will generate economic benefits
that substantially outweigh these costs. As shown in Exhibit 1, the IFR
will impose an annualized cost of $0.78 million and a total 10-year
cost of $0.55 million (7 percent discount rate). The IFR will generate
annualized transfers from H-2A workers to H-2A employers of $2.46
billion and total 10-year transfers of $17.29 billion (7 percent
discount rate).
Exhibit 1--Estimated Monetized Costs and Transfers of the Final Rule
[$2025 millions]
------------------------------------------------------------------------
Costs Transfers
------------------------------------------------------------------------
Undiscounted 10-Year Total................... $0.55 $24,157.10
10-Year Total with a Discount Rate of 3 0.55 20,781.20
percent.....................................
10-Year Total with a Discount Rate of 7 0.55 17,296.86
percent.....................................
10-Year Average.............................. 0.05 2,415.71
Annualized at a Discount Rate of 3 percent... 0.06 2,436.23
Annualized with at a Discount Rate of 7 0.08 2,462.68
percent.....................................
------------------------------------------------------------------------
The total cost of the IFR reflects only rule familiarization.
Transfers arise from changes to the AEWR methodology, specifically
establishing new AEWRs for non-range H-2A occupations based on employee
skill level, and adjustments for employer-provided housing. See the
costs and transfers subsections below for a detailed explanation.
The Department expects the IFR to generate significant economic
benefits well in excess of familiarization costs. Assuming a relatively
elastic supply of H-2A labor for the relevant wage ranges,\186\ the
Department estimates that the IFR's lower AEWR would lead farmers to
hire approximately 119,000 additional H-2A workers producing $0.2
billion in annual economic benefits resulting from new, mutually
beneficial transactions that otherwise would not have occurred. In
other words, the Department anticipates substantial incompletely-
quantified benefits, including avoiding crop losses, preserving farm
viability, stabilizing the food supply, supporting rural economies, and
facilitating workforce transition.
---------------------------------------------------------------------------
\186\ The supply of H-2A workers is considered highly elastic
because the Adverse Effect Wage Rate (AEWR) offered in the United
States is significantly higher than the wages these workers could
earn in their home countries for similar work. This large wage
differential creates a strong incentive for foreign agricultural
workers to enter the U.S. labor market whenever positions are
available. Economists routinely and uncontroversially assume perfect
elasticity of labor when assessing the effect of AEWRs. See, e.g.,
Zachariah Rutledge, et. al, Adverse Effect Wage Rates and US Farm
Wages, Amer. J. of Agr. Econ. June 9, 2025, available at: https://onlinelibrary.wiley.com/doi/10.1111/ajae.12557.
---------------------------------------------------------------------------
3. Need for Regulation
As discussed above, Executive Order 14159 directs agencies to
``employ all lawful means to ensure the faithful execution of the
immigration laws of the United States against all inadmissible and
removable aliens,'' including those who entered illegally, lack lawful
status, or are subject to final orders of removal.
Agricultural employers are facing immediate challenges due to the
expected lack of availability of illegal aliens. According to the
Department's National Agricultural Worker Survey (NAWS) \187\
agricultural employers are disproportionately dependent on illegal
aliens: approximately 42 percent of crop workers reported lacking
authorization to work in the United States during FY 2021-2022. With
illegal border crossings at record lows--agricultural employers, who
have historically been incentivized to rely on such workers because of
high AEWRs mandated to use the H-2A program, will experience economic
harm caused by mounting labor shortages.
---------------------------------------------------------------------------
\187\ 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 addition, the Department does not believe American workers
currently unemployed or even marginally employed will make themselves
readily available in sufficient numbers to replace the departing
illegal aliens. The supply of American agricultural workers is limited
by structural factors including the geographic distribution of
agricultural operations, and the seasonal nature of certain crops, and
the relatively low unemployment rate.\188\ 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 demonstrate--even absent intensified
enforcement--a persistent and systemic shortage of qualified and
eligible American workers.
---------------------------------------------------------------------------
\188\ See Diane Charlton, (``The Farm Workforce Modernization
Act and warnings from previous immigration reforms, Applied Economic
Perspectives, August 2023, at pp. 6-7, The Farm Workforce
Modernization Act and warnings from previous immigration reforms).
---------------------------------------------------------------------------
Despite efforts to broadly advertise agricultural jobs as required
by regulation, the most recent data confirm that domestic applicants
are not applying in sufficient numbers to meet employer demand. Thus,
based on the available evidence, the Department concludes that
qualified and eligible U.S. workers--whether unemployed, marginally
employed, or employed and seeking work in agriculture--will not make
themselves immediately available in sufficient numbers to avert the
potential adverse consequences to the stability of the United States
food supply and irreparable economic harm to agricultural employers as
the illegal alien labor force decreases.
4. Analysis
a. Analysis Considerations
The Department estimated the costs and transfers associated with
the IFR relative to the existing baseline, which reflects current
practices under the H-2A program as stipulated in 20 CFR part 655,
subpart B and 29 CFR part 501. The existing baseline aligns with the
2023 AEWR Final Rule,\189\ which uses the average annual hourly wage
for field and livestock workers (combined) as determined by the U.S.
Department of Agriculture's (USDA) Farm Labor Survey (FLS).
Furthermore, the AEWRs are established using statewide or national
average annual hourly wages derived from the Bureau of Labor Statistics
(BLS) Occupational Employment and Wage Statistics (OEWS) program,
particularly for non-
[[Page 47953]]
range agricultural occupations that are underrepresented or
inadequately reported by the FLS.
---------------------------------------------------------------------------
\189\ There is virtually no difference between aligning the
baseline with the 2023 AEWR Final Rule versus the 2010 AEWR as
baseline because they used the same methodology to set the AEWR for
the vast majority of job. Under the recently vacated 2023 AEWE,
which still appears in the E-CFR, 98 percent of H-2A jobs would
continue to be assigned the FLS-based AEWR and a few high-skilled
agricultural jobs would be subject to the OEWS-based AEWR.
---------------------------------------------------------------------------
In accordance with the regulatory analysis guidance specified in
OMB's Circular A-4 and consistent with methodologies used in prior
rulemakings, this analysis emphasizes the probable effects of the IFR,
particularly concerning costs and transfers borne by affected entities.
The analysis encompasses a ten-year period (2025 through 2034) to
adequately capture significant costs and transfers that may manifest
over time. The Department expresses all quantifiable impacts in 2025
dollars, using discount rates of 3 percent and 7 percent, as prescribed
by Circular A-4.
Exhibit 2--Number of Affected Entities by Type
[CY 2015-2024 average]
------------------------------------------------------------------------
Entity type No.
------------------------------------------------------------------------
Annual unique H-2A applicants.......................... 8,530
------------------------------------------------------------------------
Growth Rate
To derive realistic growth rates, the Department applied an
autoregressive integrated moving average (ARIMA) model to H-2A program
data from FY 2015 to FY 2024. This model forecasts growth in both the
number of workers and applications while estimating geometric growth
rates. The Department executed multiple ARIMA models for each dataset
and evaluated performance using standard goodness-of-fit metrics. The
varying models yielded comparable measures, allowing projection of
workers and applications through 2034.
The resulting average geometric growth rate is estimated at 5.41
percent for H-2A applications and 3.34 percent for certified H-2A
workers. The Department applied these estimates to historical program
data from FY 2015 to 2024 for H-2A applications and certified H-2A
workers (see Exhibit 3). These growth rates were then used to project
H-2A program participation and the associated costs and transfers under
the final rule. To the extent that recent and ongoing migration- and
immigration-opposing government interventions have spillover effects on
the H-2A program, this approach to quantifying costs, transfers and
benefits will yield overestimates.
Exhibit 3--Historical H-2A Program Data
------------------------------------------------------------------------
Applications Workers
Fiscal year certified certified
------------------------------------------------------------------------
2015.................................... 9,516 162,156
2016.................................... 10,705 194,595
2017.................................... 11,628 232,230
2018.................................... 13,180 262,791
2019.................................... 14,040 271,686
2020.................................... 13,580 283,845
2021.................................... 15,606 315,695
2022.................................... 17,432 355,894
2023.................................... 20,061 366,995
2024.................................... 21,633 370,836
------------------------------------------------------------------------
Hourly Compensation Rates
The Department used the hourly compensation rate presented in
Exhibit 4 to estimate rule familiarization costs (see Subject-by-
Subject Analysis). BLS's OEWS data show that the mean hourly wage of
Human Resources Specialists is $38.33.\190\ The Department applied a
42-percent benefits rate \191\ and a 17-percent overhead rate,\192\
resulting in a fully loaded hourly wage of $60.94 [= $38.33 + ($38.33 x
42%) + ($38.33 x 17%)].
---------------------------------------------------------------------------
\190\ BLS, Occupational Employment and Wage Statistics, SOC Code
13-1071, May 2024, Occupational Employment and Wage Statistics (last
visited August 21, 2025).
\191\ BLS, ``National Compensation Survey, Employer Costs for
Employee Compensation,'' https://www.bls.gov/ecec/data.htm (last
visited August 21, 2025). For private sector workers, wages averaged
$31.10 per hour worked in 2024, while benefit costs averaged $13.10,
which is a benefits rate of 42 percent.
\192\ Cody Rice, U.S. Environmental Protection Agency, ``Wage
Rates for Economic Analyses of the Toxics Release Inventory
Program,'' June 10, 2002, https://www.regulations.gov/document/EPA-HQ-OPPT-2014-0650-0005 (last visited May 8, 2025).
Exhibit 4--Compensation Rates
[$2025]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Base hourly Hourly
Occupation wage rate Loaded wage factor Overhead costs compensation rate
(a) (b) (c) (d = a + b + c)
--------------------------------------------------------------------------------------------------------------------------------------------------------
HR Specialist.......................................... $38.33 $16.10 ($38.33 x 0.42) $6.52 ($38.33 x 0.17) $60.95
--------------------------------------------------------------------------------------------------------------------------------------------------------
b. Subject-by-Subject Analysis
In this section, the Department reviews rule familiarization costs,
unquantifiable costs, transfers from H-2A workers to U.S. employers,
and partially-quantified benefits arising from the IFR.
Costs
This section summarizes the costs associated with the IFR.
Quantifiable Costs
Rule Familiarization
Upon implementation of the IFR, H-2A employers will be required to
review and understand the new regulatory framework. This requirement
will incur a one-time cost in the first year of enforcement. To project
the first-year costs of rule familiarization, the Department applied
the growth rate of H-2A applications (6.7%) to the average annual
unique H-2A applicants from 2015 to 2024 (8,530), resulting in an
estimate of 9,102 unique H-2A applicants. This figure was multiplied by
the estimated time required for rule review (1 hour) \193\ and then
multiplied by the hourly compensation rate of Human Resources
Specialists ($60.95 per hour). This calculation yields a one-time
undiscounted cost of $554,689 in the first year of the rule's
enactment. The annualized cost over the ten-year span is projected at
approximately $65,026 (3% discount rate) and $78,975 (7% discount
rate).
---------------------------------------------------------------------------
\193\ This estimate reflects the nature of the final rule. As a
rulemaking to amend parts of an existing regulation, rather than to
create a new rule, the 1-hour estimate assumes a high number of
readers familiar with the existing regulation.
---------------------------------------------------------------------------
Unquantifiable Costs
Payroll and Other Transition Costs
The implementation of the IFR will result in new AEWR wage rates
for certain Standard Occupational Classification (SOC) codes and
geographic combinations, diverging from the baseline. H-2A employers
will need to revise payroll systems to incorporate these new AEWR wage
rates. The Department does not quantify
[[Page 47954]]
this cost, anticipating it to be de minimis, as employers must already
update payrolls in response to the annual release of AEWR wage rates.
Consequently, employers are adequately equipped to make these updates
swiftly and at minimal cost when AEWR wage rates change.
Furthermore, the IFR may incur additional transition costs for
certain employers in terms of recruitment and training if they choose
to hire U.S. workers for positions traditionally filled by H-2A
workers.
Transfers Associated With the AEWR Housing Adjustment
This section outlines the transfers resulting from IFR revisions to
the AEWR wage structure. Transfers are defined as reallocation of
payments between groups without changing total societal resources. (or,
if resources do change, it is through incentive effects captured
through more extensive analysis). Specifically, this analysis
identifies wage transfers from H-2A workers to U.S. employers,
resulting from the changes outlined in this IFR.
As articulated in Section 218(a)(1) of the Immigration and
Nationality Act (INA), codified at 8 U.S.C. 1188(a)(1), the
admissibility of an H-2A worker is contingent upon the Secretary of
Labor's determination that ``there are not sufficient workers who are
able, willing, and qualified, and who will be available at the time and
place needed, to perform the labor or services involved in the
petition, and the employment of the alien in such labor or services
will not adversely affect the wages and working conditions of workers
in the United States similarly employed.'' In compliance with this
statutory requirement, the Department, per 20 CFR 655.120(a) and
655.122(l), mandates that employers offer and pay a wage that is the
highest among the AEWR, the prevailing wage, the agreed-upon collective
bargaining wage, the Federal minimum wage, or the State minimum wage.
The IFR maintains this broad wage-setting framework but introduces
modifications to the methodology employed in establishing AEWRs.
Another source of transfers arises from the Department's
implementation of a downward adjustment to the hourly AEWR to account
for the disparity in compensation between U.S. workers and H-2A
workers, the latter of whom receive non-wage compensation in the form
of employer-provided lodging.
To address this disparity, the Department established a
standardized AEWR adjustment factor reflecting the value of employer-
provided housing. The calculation for the housing adjustment is derived
from annual fair market rents data published by the U.S. Department of
Housing and Urban Development (HUD).\194\ Since HUD releases this data
by county, the Department utilizes county population weights to derive
statewide average Fair Market Rents (50th Percentile Rents). Exhibit 5
demonstrates the Department's methodology using 2014 housing figures as
an example. The Department's approach assumes an occupancy of 8
individuals in a four-bedroom accommodation and 172 hours worked per
worker on average per month.
---------------------------------------------------------------------------
\194\ https://www.huduser.gov/portal/datasets/fmr.html.
Exhibit 5--Housing Adjustment Example
[$2025]
----------------------------------------------------------------------------------------------------------------
Fair market rent (4- Monthly hours Hourly housing
Year bedroom unit) ($) Number of occupants worked adjustment ($)
(a) (b) (c) d = a/(b*c)
----------------------------------------------------------------------------------------------------------------
2014........................... $1,390 8 172 $1.07
----------------------------------------------------------------------------------------------------------------
Utilizing the aforementioned formula, the estimated hourly employer
compensation from the housing premiums for the fiscal years 2014
through 2024 are presented in Exhibit 6.
Exhibit 6--Annual Housing Premium by Year
[FYs 2014-2024 $2025]
------------------------------------------------------------------------
Baseline annual
Year Hourly national AEWRs
housing ($) ($) \195\
------------------------------------------------------------------------
2014.................................... 1.07 10.54
2015.................................... 1.12 10.83
2016.................................... 1.17 11.32
2017.................................... 1.24 11.73
2018.................................... 1.29 11.99
2019.................................... 1.35 12.58
2020.................................... 1.43 13.25
2021.................................... 1.48 13.79
2022.................................... 1.54 14.63
2023.................................... 1.70 15.81
2024.................................... 1.89 16.66
------------------------------------------------------------------------
To project total housing premiums, the Department multiplied the
hourly housing cost by the total number of certified H-2A workers,
calculated over 40 hours per week for 26 weeks.\196\ The preliminary
estimate for the total housing premium in 2024 is approximately $729
million. To project future housing transfers, the Department applied an
ARIMA model, utilizing data from the H-2A program spanning FY 2014 to
2024.\197\ The forecast incorporates geometric growth rates derived
from certified H-2A workers and applications. Each model specification
is fitted to historical data to generate out-of-sample forecasts for
the subsequent decade. The compound annual growth rate (CAGR) for each
model is computed between the first forecast year (2025) and the last
(2034), and the average CAGR across all models is taken to smooth out
model-specific discrepancies, providing a singular and robust estimate
of anticipated long-term growth. The average growth rate is then
applied to the most recent observed value (2024) using the formula:
---------------------------------------------------------------------------
\195\ The Department calculated Average Annual AEWRs using
annual reported state AEWRs reported in the Federal Register and
weighing the state-level figures based on the number of certified H-
2A workers in each state to create a national estimate. For example,
see. Federal Register, Labor Certification Process for the Temporary
Employment of Aliens in Agriculture in the United States: 2014
Adverse Effect Wage Rates.
\196\ 40 represents the average number of hours worked per week
and 26 the average duration of work (in weeks) of an H-2A worker.
\197\ To forecast future housing costs, we estimate a set of
ARIMA models with alternative lag structures: (0,2,0), (0,2,1),
(0,2,2), (1,2,1), (1,2,2), (2,2,2).
[[Page 47955]]
---------------------------------------------------------------------------
Future Valuet = Base Value2024 x (1 + r)t-2024
Where r signifies the average CAGR. This methodology results in a
consistent projection path for 2025-2034 that reflects the central
tendency of the ARIMA forecasts while maintaining smooth year-to-year
progressions. The results indicate an average CAGR of 6.56 percent for
housing and 3.34 percent for workers.
Exhibit 7--Estimated Annual Housing Transfers by Year
[FYs 2025-2034 $2025)]
----------------------------------------------------------------------------------------------------------------
Estimated hourly Estimated H-2A Estimated housing
Year housing ($) workers certified transfers ($)
----------------------------------------------------------------------------------------------------------------
2025............................................. 2.00 383,210 798,987,601
2026............................................. 2.13 395,996 877,978,389
2027............................................. 2.27 409,209 964,778,490
2028............................................. 2.41 422,863 1,060,159,962
2029............................................. 2.56 436,973 1,164,971,190
2030............................................. 2.73 451,554 1,280,144,432
2031............................................. 2.90 466,620 1,406,704,115
2032............................................. 3.08 482,190 1,545,775,944
2033............................................. 3.28 498,279 1,698,596,914
2034............................................. 3.49 514,905 1,866,526,315
----------------------------------------------------------------------------------------------------------------
The Department employed multiple ARIMA models across the dataset,
assessed fit using standard metrics, and found consistent results
across specifications. The total estimated housing transfer over a ten-
year period is approximately $12.66 billion (undiscounted), with
discounted values at $10.88 billion (3%) and $9.03 billion (7%). The
annualized transfer over this period totals approximately $1.28 billion
(3%) and $1.29 billion (7%).
Transfers Associated With AEWR Determination Methodology
The second category of transfers arises from modifications to the
AEWR methodology to account for qualifications specified in employers'
job offers. The existing baseline aligns with the 2023 AEWR Final Rule,
which uses the average hourly gross wage for field and livestock
workers (combined) as determined by the U.S. Department of
Agriculture's (USDA) Farm Labor Survey (FLS). The Department believes
that this revised approach provides a more consistent, market-based
assessment of wages paid to similarly employed U.S. workers. Under this
policy, the Department will establish AEWRs for H-2A positions using
the state or territorial average hourly wage, separated into two
qualification levels: Skill Level I (Entry-Level) and Skill Level II
(Experience-Level).
This dual-skill level policy seeks to approximate average wages
paid to U.S. workers engaged in similar occupations within the relevant
geographic area based on the qualifications specified in the employers'
job offers for which H-2A workers are sought for temporary agricultural
labor certification. Skill Level I AEWR corresponds with entry-level
positions where workers are expected to have no formal education or
specialized training. Conversely, Skill Level II AEWR corresponds with
offers requiring qualifications reflective of experienced or trained
employees.
To estimate total wage transfers, the Department used OEWS state
wage data. The analysis first estimated the mean of the lower third of
the wage distribution, which may approximately equal the 17th
percentile. Since the Bureau of Labor Statics does not publish the 17th
percentile data directly, an approximation is calculated using a linear
interpolation between the 10th and 25th percentile. Therefore, the full
wage for the entry level is calculated as follow:
[GRAPHIC] [TIFF OMITTED] TR02OC25.010
Where H10 and H25 are equal to the 10th and
25th percentile.
The experienced-worker wage is determined as the difference between
the baseline AEWR and the mean wage:
WageExperience = AEWR-HMEAN
The overall total wage is a weighted average of these entry-level
and experienced wages, with 92% weight on the entry-level wage and 8%
on the experienced-worker wage:
Total Wage = 0.92 x WageENTRY + 0.08 x WageExperience
We chose 92% given the fact that roughly 92% of all H-2A Visas were
paid the AEWR.
We then assume the other 8% would be paid the higher wage level.
Exhibit 8--Wage Transfer Estimates
[$2025]
----------------------------------------------------------------------------------------------------------------
Total H-2A
Year workers Hourly wage Hourly wage Hourly wage Total wage
certified entry ($) experience ($) total ($) transfers ($)
----------------------------------------------------------------------------------------------------------------
2014............................ 137,601 1.96 -0.73 1.74 249,400,656
2015............................ 162,156 2.02 -0.69 1.80 304,092,787
2016............................ 194,595 2.15 -0.52 1.94 392,496,418
[[Page 47956]]
2017............................ 232,230 2.20 -0.56 1.98 477,327,411
2018............................ 262,791 2.18 -0.81 1.94 530,625,900
2019............................ 271,686 2.49 -0.68 2.23 631,308,989
2020............................ 283,845 2.55 -0.52 2.30 679,910,519
2021............................ 315,695 2.30 -0.66 2.06 676,814,801
2022............................ 355,894 1.82 -1.24 1.58 583,474,128
2023............................ 366,995 2.02 -1.02 1.77 677,384,528
2024............................ 370,836 2.13 -0.89 1.89 727,237,161
----------------------------------------------------------------------------------------------------------------
Wage transfers for 2024 are approximately $727 million. Forecasting
for subsequent years, the Department applied the same methodology to
project H17, HMEAN and AEWR with respective CAGRs of 4.1, 3.9, and 4.15
percent, respectively.
Exhibit 9--Projected Wage Transfer Estimates
[$2025]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Estimated total
Year Estimated H-2A Estimated wage Estimated wage Estimated wage wage transfers
workers certified entry ($) experience ($) total ($) ($)
--------------------------------------------------------------------------------------------------------------------------------------------------------
2025......................................................... 383,210 2.21 -0.90 1.96 783,018,058
2026......................................................... 395,996 2.32 -0.90 2.06 847,914,598
2027......................................................... 409,209 2.42 -0.89 2.16 918,150,315
2028......................................................... 422,863 2.53 -0.89 2.26 994,161,745
2029......................................................... 436,973 2.65 -0.88 2.37 1,076,420,926
2030......................................................... 451,554 2.77 -0.87 2.48 1,165,438,271
2031......................................................... 466,620 2.90 -0.85 2.60 1,261,765,674
2032......................................................... 482,190 3.03 -0.84 2.72 1,365,999,865
2033......................................................... 498,279 3.17 -0.82 2.85 1,478,786,038
2034......................................................... 514,905 3.32 -0.80 2.99 1,600,821,767
--------------------------------------------------------------------------------------------------------------------------------------------------------
The total estimated skill-level wage transfer over the ten-year
period is projected at approximately $11.5 billion (undiscounted), with
discounted values of $939 billion (3%) and $8.26 billion (7%).
Annualized transfers are $1.16 billion (3%) and $1.176 billion (7%).
Exhibit 10--Total Transfers
[$2025]
----------------------------------------------------------------------------------------------------------------
Estimated total Estimated total
Year housing transfers wage transfers Estimated total
($) ($) transfers ($)
----------------------------------------------------------------------------------------------------------------
2025................................................. 798,987,601 783,018,058 1,582,005,658
2026................................................. 877,978,389 847,914,598 1,725,892,987
2027................................................. 964,778,490 918,150,315 1,882,928,805
2028................................................. 1,060,159,962 994,161,745 2,054,321,707
2029................................................. 1,164,971,190 1,076,420,926 2,241,392,116
2030................................................. 1,280,144,432 1,165,438,271 2,445,582,703
2031................................................. 1,406,704,115 1,261,765,674 2,668,469,789
2032................................................. 1,545,775,944 1,365,999,865 2,911,775,809
2033................................................. 1,698,596,914 1,478,786,038 3,177,382,952
2034................................................. 1,866,526,315 1,600,821,767 3,467,348,082
----------------------------------------------------------------------------------------------------------------
Results indicate average annual undiscounted transfers of $2.42
billion. Over 10 years, transfers total $24.16 billion undiscounted, or
$20.78 billion (3%) and $17.3 billion (7%). Annualized totals are $2.43
billion (3%) and $2.46 billion (7%).
The decrease (or increase) in the AEWRs also represents a wage
transfer from corresponding workers, not only H-2A workers. However,
the Department lacks sufficient information about the number of
corresponding workers or their wage structures to measure these
impacts.\198\ Recruitment
[[Page 47957]]
reports submitted for certification cover only the initial recruitment
period (through 50% of the contract period) and do not capture all
potentially affected workers already employed.
---------------------------------------------------------------------------
\198\ The Department considers corresponding workers to be U.S.
workers employed by an H-2A employer in any work included in the
ETA-approved job order or in any agricultural work performed by the
H-2A workers during the period of the job order. U.S. workers may
include individuals who are either born in the United States, or
individuals who are naturalized U.S. citizens. Authorized workers in
the H-2A program refers to either a U.S. citizen/national, a lawful
permanent resident, or a foreign national who is not an
``unauthorized alien'' and holds a valid H-2A visa classification.
Unauthorized workers are individuals who are not legally permitted
to work in the United States under the H-2A program.
---------------------------------------------------------------------------
Because available data are limited, the Department cannot
reasonably quantify transfer impacts to corresponding workers.
Likewise, it cannot estimate how much of the transfer remains within
the U.S. economy, although it is likely that a substantial share does,
as employers reinvest in land, equipment, crop diversification, and
local supply chain activities.
The Department invites comments on data sources or methods to
better estimate corresponding worker impacts and transfer effects under
the revised AEWR methodology.
Quantitative Benefits Analysis
The Department further expects the IFR to generate substantial
economic benefits that exceed familiarization costs. To quantify these
benefits, the Department must adopt several key assumptions. First, the
Department assumes that lowering the AEWR increases H-2A employment--
growers employ more H-2A workers when the cost of doing so falls
because the demand for H-2A labor can be assumed to be downwardly
sloped.\199\ Given the large wage differential between U.S. farm jobs
and typical wages in workers' home countries, the supply of foreign
labor can reasonably be modeled as perfectly elastic at the competitive
wage. In this framework, lowering the AEWR does not reduce labor
supply, but instead allows employers to hire more workers.\200\ Second,
we assume that farms can expand output along a linear demand curve (see
diagram below); diminishing marginal returns on a fixed farm reflect
the sector's capacity to expand production when affordable labor is
available. Under these assumptions lower wages would translate into new
employment opportunities for H-2A workers. The associated increase in
output can be estimated by applying an empirical estimate of demand
elasticity.
---------------------------------------------------------------------------
\199\ See, Zachariah Rutledge, et. al, Adverse Effect Wage Rates
and U.S. Farm Wages, Amer. J. of Agr. Econ. June 9, 2025, available
at: https://onlinelibrary.wiley.com/doi/10.1111/ajae.12557.
\200\ See Paik, Song YI. 2021. The impacts of agricultural
minimum wage on U.S. agricultural employment.
[GRAPHIC] [TIFF OMITTED] TR02OC25.011
We have assumed perfect elasticity of labor supply and a long-run
labor demand elasticity of -0.8, and seek comment on whether this
figure is realistic. lowering the AEWR from $17.35 to $13.38 would
raise projected employment from about 383,000 to 502,000 workers, an
increase of roughly 119,000 workers. To get the total number of
increased workers following formula is used (where AEWRavg
is the average of AEWRnew and AEWRold):
Increased workers = 1 -0.8[middot](Projected
workers)[middot](AEWRnew-AEWRold)/
AEWRavg:
Given the new AEWR change of $3.97/hour (= $17.35/hour-$13.38/
hour), the net deadweight loss reduction per worker-hour would be
approximately $1.99.\201\ Multiplying by the additional 123 million
hours yields an estimated annual benefit of $246 million.
---------------------------------------------------------------------------
\201\ This estimate reflects a linear demand curve, as
diagrammed above, and would have a tendency toward overstatement of
deadweight loss if the underlying demand curve is instead non-
linear.
---------------------------------------------------------------------------
The same effect could, alternatively, be quantified with a more
itemized approach, estimating revenue changes and then subtracting off
various categories of opportunity cost associated with the production
process that ultimately yields the sales revenue.
[[Page 47958]]
Under a standard 40-hour workweek and a 26-week employment schedule, an
increase of 119,000 H-2A workers corresponds to an additional 123
million hours of farm labor. According to MacDonald et al. (2018),\202\
specialty crop farms in 2015 required 14.4 hours of labor to generate
$1,000 in sales, implying an average revenue of about $69 per labor
hour. An additional 123 million hours of farm labor each year could
therefore produce $8.54 billion in additional farm revenue. This
revenue estimate may have a tendency toward understatement, as cash
grain farms are approximately 288% more productive per hour than
specialty crop farms.\203\ Itemized estimates of associated production-
process costs are not available for this alternative quantification's
necessary next step of subtraction.
---------------------------------------------------------------------------
\202\ MacDonald, J.M., Hoppe, R.A., & Newton, D. (2018). Three
decades of consolidation in U.S. agriculture. Economic Information
Bulletin. https://doi.org/10.22004/ag.econ.276247.
\203\ Id.
---------------------------------------------------------------------------
Extended (Qualitative) Discussion of Benefits
The Department also anticipates several significant benefits. that
are incompletely quantified due to the use, above, of a long-run labor
demand elasticity. The first is the avoidance of irreversible crop
losses. By potentially lessening near-term wage spikes that can render
hiring prohibitively expensive, farms are better positioned to maintain
adequate staffing levels during crucial planting, growing, and
harvesting periods. This reduces the risk of irreversible crop
destruction and protects food security.
The rule also plays a vital role in the preservation of farm
viability. By mitigating unsustainable short-term wage increases, the
rule can help prevent farm closures, bankruptcies, and asset
liquidations--particularly for small and mid-sized operations that
often lack substantial financial reserves. Maintaining farm stability
preserves agricultural diversity.
Furthermore, the adjustment contributes to the stabilization of
food supply chains. Ensuring that agricultural production remains
uninterrupted supports not only farmers but also downstream industries,
including food processing, transportation, and retail. This continuity
is essential for minimizing the likelihood of shortages, price
volatility, and disruptions throughout the supply chain, which can
affect consumers and businesses alike.
The IFR also offers significant support for rural economies. By
preventing sudden contractions in farm payrolls, the rule helps sustain
local spending, tax revenues, and business activity, vital to rural
communities.
Lastly, the IFR facilitates an orderly workforce transition. By
moderating wage adjustment, the rule provides time for farms to
recruit, relocate, and train authorized domestic workers without
destabilizing production. This aligns with the long-term goal of
fostering a fully authorized agricultural workforce, effectively
shifting reliance away from illegal labor practices and enhancing the
stability and legality of the agricultural labor market.
The Department believes that the anticipated benefits of the IFR
exceed its costs.
c. Regulatory Alternatives
The Department considered two regulatory alternatives. The first
alternative would apply the Skill Level I (Entry-Level) AEWR rate to
all positions, rather than using the two-skill AEWR methodology in the
IFR. In this alternative, the transfer estimates applied to the
majority of H-2A workers in are also applicable to the remaining H-2A
workers that would be considered experienced workers under the
Department's preferred methodology. To calculate the total impact of
the first regulatory alternative, the Department used the same
methodology described in the Transfers Associated with AEWR
Determination Methodology section, resulting in estimated average
annual undiscounted transfers of $2.55 billion. The total transfer over
the 10-year period was estimated at $25.50 billion (undiscounted), or
$21.95 billion (3%) and $18.27 billion (7%). Annualized transfer over
ten years are $2.57 billion (3%) and $2.60 billion (3%).
Under the second regulatory alternative, the Department would
replace the 4-bedroom fair market rent with the 0-bedroom (i.e.,
efficiency) fair market rent for 2 people. For 2024, this change would
increase the housing premium to $3.54, which is approximately $613 per
month--closer to Farmers.gov housing cost estimates \204\ of
approximately $9,000 to $13,000 per worker per year. Under the IFR
methodology, the Department estimated a housing premium of $1.75, which
is equal to a rent of approximately $70 per week and $300 per month.
The Department estimated average annual undiscounted transfers of $3.88
billion. The total transfer over the 10-year period was estimated at $
38.82 billion undiscounted, or $33.31 billion (3%) and $27.64 billion
(7%). Annualized transfer over ten years are $3.91 billion (3%) and
$3.94 billion (3%).
---------------------------------------------------------------------------
\204\ https://www.farmers.gov/working-with-us/h2a-visa-program.
---------------------------------------------------------------------------
Exhibit 11 summarizes the estimated transfers associated with the
three considered revised wage structures over the 10-year analysis
period. Transfers under the IFR and both regulatory alternatives are
transfers from H-2A employees to H-2A employers.
Exhibit 11--Estimated Monetized Transfers of the Interim Final Rule
[$2025 Millions]
----------------------------------------------------------------------------------------------------------------
Regulatory Regulatory
Interim final rule alternative 1 alternative 2
(transfers from (transfers from (transfers from
employees to employees to employees to
employers) employers) employers)
----------------------------------------------------------------------------------------------------------------
Total 10-Year Transfer.............................. $24,157.10 $25,503.49 $38,817.90
Total with 3% Discount.............................. 20,781.53 21,946.32 33,314.66
Total with 7% Discount.............................. 17,296.86 18,273.50 27,642.21
Annualized Undiscounted Transfer.................... 2,415.71 2,550.35 3,881.79
Annualized Transfer with 3% Discount................ 2,436.23 2,575.78 3,905.49
Annualized Transfer with 7% Discount................ 2,462.68 2,601.74 3,935.63
----------------------------------------------------------------------------------------------------------------
[[Page 47959]]
The Department prefers the chosen approach of the IFR because it
better accounts for the wages of workers in higher skilled positions
and is more representative of lodging conditions for H-2A workers.
B. Regulatory Flexibility Act, Small Business Regulatory Enforcement
Fairness Act of 1996, and Executive Order 13272 (Proper Consideration
of Small Entities in Agency Rulemaking) Executive Order 13272 (Proper
Consideration of Small Entities in Agency Rulemaking)
The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601 et seq.,
as amended by Small Business Regulatory Enforcement Fairness Act of
1996 (SBREFA), Public Law 104-121> (Mar. 29, 1996), hereafter jointly
referred to as the RFA, requires agencies to prepare an initial
regulatory flexibility analysis (IRFA) when proposing, and a final
regulatory flexibility analysis (FRFA) when issuing, regulations that
will have a significant economic impact on a substantial number of
small entities.
Because public notice was not required for this IFR, the Department
was not obligated to prepare a regulatory flexibility analysis.\205\
Nonetheless, The Department conducted the analysis below of the effect
on small entities from the IFR and, based on that analysis, concludes
that this rule will have a significant economic impact on small farms
that employ H-2A workers.
---------------------------------------------------------------------------
\205\ See, e.g., Oregon Trollers Ass'n v. Gutierrez, 452 F.3d
1104, 1124 (9th Cir. 2006) (``When the agency validly invokes the
``good cause'' exception, the RFA does not apply.'').
---------------------------------------------------------------------------
Initial Regulatory Flexibility Analysis (IRFA)
1. Why action is being considered
As described throughout the preamble for this IFR, in the
Department's view, 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. 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. Further, the Department initially finds 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 that will result
from the sealing of the border and potential further enforcement of
immigration laws. 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 being removed. These changes ensure that
agricultural employers offer wages to legally authorized workers that
are 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.
2. Objective of the IFR
The primary objectives of the IFR are to restore the usability of
the H-2A program, ensure a stable food supply for the United States,
and (relevant to the RFA) avert irreparable economic harm to
agricultural employers as large numbers of illegal aliens exit the
labor force.
(3) Class of Small Entities
A small entity is one that is independently owned and operated and
that is not dominant in its field of operation. 5 U.S.C. 601(3); 15
U.S.C. 632. The definition of small entity varies from industry to
industry to properly reflect industry size differences. 13 CFR 121.201.
An agency must either use the SBA definition for a small entity or
establish an alternative definition for the industry.
Using the U.S. Department of Agriculture (USDA) farm size
definitions and data, the Department has conducted a small entity
impact analysis. This analysis is focused on farms because over three
quarters of affected entities are primarily engaged in growing crops
and raising animals for sale. The Department lacks data on individual
entities that participate in the H-2A program. Therefore, the
Department is using USDA data as a proxy for H-2A participants. USDA
data includes the number of farms that hire farm workers, number of
hired farm workers, and annual revenue disaggregated farm size. Using
this data allows the Department to estimate the per-small farm rule
familiarization cost and the cost savings of the IFR as a percent of
revenue. The Department notes that all hired farm workers are not H-2A
workers and that only a small share of U.S. farms utilize the H-2A
program.
(4) Impact on Small Entities
a. Familiarization With Regulatory Change
Upon effective implementation of the IFR, H-2A employers will be
required to become acquainted with the new regulatory framework. The
Department estimated this cost for a hypothetical small entity by
multiplying the time required to read the new rule (1 hour) by the
average hourly compensation rate of a human resources specialist
($60.95, as calculated above). Thus, the resulting cost per small
entity is $60.95 ($60.95 x 1 hour). This cost occurs only in the year
the IFR is published.
b. Cost Savings
As explained in the E.O. 12866 section above, the Department
identified wage transfers from H-2A workers to U.S. employers that will
result from the following provisions in the IFR:
Wage transfers that account for the compensation disparity
U.S. workers face when H-2A workers are paid for work performed under
the same work contract but, unlike U.S. works, receive additional non-
wage compensation in the form of free housing.
Wage transfers associated with modifications to the AEWR
determination methodology that account for different skill levels
delineated in employers' job offers.
The Department estimated that the above provisions will result in
annualized transfers of $2.46 billion discounted at 7 percent over 10
years. The Department also estimated that there will be an annual
average of 446,180 certified H-2A workers over the next 10 years. This
translates into a wage transfer from the average H-2A worker to U.S.
employers of $5,513 per year.
Method Used To Estimate the Impact on Small Entities
The Department used the following steps to estimate the cost of the
IFR per small entity as a percentage of annual receipts. First, the
Department used the USDA size definitions to determine the size
thresholds of small entities. The USDA defines a ``small family farm''
as a farm having a gross cash farm income (GCFI) of less than $350,000
per year. Next, the Department obtained data on the number of farms and
annual revenue by size from the USDA's 2022 Census of Agriculture.\206\
Then, the Department divided the estimated first-year cost per entity
($60.95) by the average annual receipts per small farm ($47,062) to
determine whether the IFR rule familiarization cost would have a
significant economic impact on small entities.\207\
---------------------------------------------------------------------------
\206\ U.S. Department of Agriculture, ``2022 Census of
Agriculture,''
\207\ For purposes of this analysis, the Department used a 3-
percent threshold for ``significant economic impact.'' The
Department has used a 3-percent threshold in prior rulemakings.
---------------------------------------------------------------------------
[[Page 47960]]
To estimate the cost savings per small farm, the Department first
determined the average number of hired farm workers per small farm
(2.5) by dividing the number of hired farm workers on small farms
(669,690) by the number of small farms that hire farm labor (268,931).
The Department then estimated the average number of hired H-2A workers
per small farm (0.41) by multiplying the average number of hired farm
workers per small farm (2.5) by the percent of the farm workforce that
are H-2A workers (16.3%).\208\ The Department then multiplied the
average number of hired H-2A workers per small farm (0.41) by the
annualized discounted cost savings per H-2A worker ($5,513) to estimate
the savings per small farm ($2,238). Then, the Department divided the
estimated cost savings per small farm by the average receipts per small
farm to determine whether the IFR will have a significant economic
impact on small farms.
---------------------------------------------------------------------------
\208\ The percent of the farm workforce that are H-2A workers
(16.3%) was derived by dividing the number of H-2A workers in 2022
(355,894) by the number of hired farm workers in 2022 (2,184,493).
---------------------------------------------------------------------------
Estimated Impact of the IFR on Small Entities
As shown in Exhibit 12, the first-year cost for rule
familiarization is not expected to have a significant economic impact
(3 percent or more) on small farms. The first-year cost for rule
familiarization is estimated to be 0.1 percent of the average receipts
per small farm. As also shown in Exhibit 12, the annualized cost
savings are estimated to have a significant economic impact on small
farms that employ H-2A workers. The annualized cost savings are
estimated to be 4.8 percent of the average receipts per small farm. The
Department therefore estimates the total annualized transfers for small
farms that hire farm labor to be $601.8 million or 24.5% of total
transfers.
[GRAPHIC] [TIFF OMITTED] TR02OC25.012
(5) Relevant Federal Rules Duplicating, Overlapping, or Conflicting
With the Proposed Rule
The Immigration and Nationality Act requires a prospective employer
seeking to employ foreign nationals in agricultural employment of a
temporary or seasonal nature to first apply to the Department for a
labor certification. When creating the H-2A visa classification,
Congress charged the Department with, among other things, a unique
responsibility to regulate the employment of nonimmigrant foreign
nationals in agriculture to guard against adverse impact on the wages
of agricultural workers in the United States similarly employed. Thus,
the statute delegates broad discretion to the Department in determining
the sources and methods that best allows it to meet its statutory
mandate, which this IFR adopts through the determination of AEWRs
applicable only to employers seeking temporary agricultural labor
certification under the H-2A visa classification. As such, the
standards adopted in this IFR do not duplicate, overlap, or conflict
with any other Federal rules.
(6) Alternatives to the Proposed Rule
As explained in the RIA, the Department considered two regulatory
alternatives. The first alternative would apply the Skill Level I
(Entry-Level) AEWR rate to all positions, rather than using the two-
skill AEWR methodology in the IFR. The Department estimated that this
alternative would result in annualized transfers of $2.60 billion
discounted at 7 percent over 10 years. Given the projected annual
average number of certified H-2A workers over the next 10 years
(446,180), the Department estimated a wage transfer from the average H-
2A worker to U.S. employers of $5,831 per year. The Department then
multiplied the average number of hired H-2A workers per small farm
(0.41) by the annualized discounted cost savings per H-2A worker
($5,831) to estimate the cost savings per small farm from this
alternative ($2,367). As shown in Exhibit 13, the annualized cost
savings of this alternative are estimated to have a significant
economic impact on small farms that employ H-2A workers. The annualized
cost savings of this alternative are estimated to be 5.0 percent of the
average receipts per small farm.
[[Page 47961]]
[GRAPHIC] [TIFF OMITTED] TR02OC25.013
Under the second regulatory alternative, the Department would
replace the 4-bedroom fair market rent with the 0-bedroom (i.e.,
efficiency) fair market rent for 2 people. The Department estimated
that this alternative would result in annualized transfers of $3.94
billion discounted at 7 percent over 10 years. Given the projected
annual average number of certified H-2A workers over the next 10 years
(446,180), the Department estimated a wage transfer from the average H-
2A worker to U.S. employers of $8,821 per year. The Department then
multiplied the average number of hired H-2A workers per small farm
(0.41) by the annualized discounted cost savings per H-2A worker
($8,821) to estimate the cost savings per small farm from this
alternative ($3,580). As shown in Exhibit 14, the annualized cost
savings of this alternative are estimated to have a significant
economic impact on small farms that employ H-2A workers. The annualized
cost savings of this alternative are estimated to be 7.6 percent of the
average receipts per small farm.
[GRAPHIC] [TIFF OMITTED] TR02OC25.014
The Department prefers the chosen approach of the IFR because it
better accounts for the wages of workers in higher skilled positions
and is more representative of lodging conditions for H-2A workers.
C. Review Under the Paperwork Reduction Act
The purpose of the Paperwork Reduction Act of 1995 (PRA), 44 U.S.C.
3501 et seq., includes minimizing the paperwork burden on affected
entities. The PRA requires certain actions before an agency can adopt
or revise a collection of information, including publishing for public
comment a summary of the collection of information and a brief
description of the need for and proposed use of the information.
As part of its continuing effort to reduce paperwork and respondent
burden, the Department conducts a preclearance consultation program to
provide the public and Federal agencies with an opportunity to comment
on proposed and continuing collections of information in accordance
with the PRA. See 44 U.S.C. 3506(c)(2)(A). This activity helps to
ensure that the public understands the Department's collection
instructions, respondents can provide the requested data in the desired
format, reporting burden (time and financial resources) is minimized,
collection instruments are clearly understood, and the Department can
properly assess the impact of collection requirements on respondents.
A Federal agency may not conduct or sponsor a collection of
information
[[Page 47962]]
unless it is approved by the Office of Management and Budget (OMB)
under the PRA and it displays a currently valid OMB control number. The
public is also not required to respond to a collection of information
unless it displays a currently valid OMB control number. In addition,
notwithstanding any other provisions of law, no person will be subject
to penalty for failing to comply with a collection of information if
the collection of information does not display a currently valid OMB
control number (44 U.S.C. 3512).
The Department has determined that the changes adopted in this IFR
will not result in changes to the information collection covered under
H-2A Temporary Agricultural Labor Certification Program, OMB Control
Number 1205-0466 (OMB 1205-0466), which would not require soliciting
public comments in order to seek OMB approval of any clarifying changes
and de minimis adjustment in burden the proposed changes might cause to
existing information collection tools covered under this control
number. The Department intends to collect the information it currently
requires in order to process H-2A job orders and applications for
agency decision making and will provide a set of frequently asked
questions that will be available on the agency website to help
respondents better organize information related to job duties and
requirements that employers already disclose on existing fields in the
forms.
D. Review Under Executive Order 13132
E.O. 13132, Federalism, 64 FR 43255 (Aug. 10, 1999), imposes
certain requirements on Federal agencies formulating and implementing
policies or regulations that preempt State law or that have federalism
implications. The E.O. requires agencies to examine the constitutional
and statutory authority supporting any action that would limit the
policymaking discretion of the States and to carefully assess the
necessity for such actions. The E.O. also requires agencies to have an
accountable process to ensure meaningful and timely input by State and
local officials in the development of regulatory policies that have
federalism implications.
The Department has examined this IFR and has determined that it
would not have a substantial direct effect on the States, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government.
E. Executive Order 13175 (Consultation and Coordination With Indian
Tribal Governments)
The Department has reviewed this IFR in accordance with E.O. 13175
and has determined that it does not have tribal implications. This
proposed rule does not have substantial direct effects on one or more
Indian tribes, on the relationship between the Federal Government and
Indian tribes, or on the distribution of power and responsibilities
between the Federal Government and tribal governments.
F. Review Under Executive Order 12988
With respect to the review of existing regulations and the
promulgation of new regulations, section 3(a) of E.O. 12988, ``Civil
Justice Reform,'' imposes on Federal agencies the general duty to
adhere to the following requirements: (1) eliminate drafting errors and
ambiguity, (2) write regulations to minimize litigation, (3) provide a
clear legal standard for affected conduct rather than a general
standard, and (4) promote simplification and burden reduction. 61 FR
4729 (Feb. 7, 1996). Regarding the review required by section 3(a),
section 3(b) of E.O. 12988 specifically requires that Executive
agencies make every reasonable effort to ensure that the regulation:
(1) clearly specifies the preemptive effect, if any, (2) clearly
specifies any effect on existing Federal law or regulation, (3)
provides a clear legal standard for affected conduct while promoting
simplification and burden reduction, (4) specifies the retroactive
effect, if any, (5) adequately defines key terms, and (6) addresses
other important issues affecting clarity and general draftsmanship
under any guidelines issued by the Attorney General.
Section 3(c) of E.O. 12988 requires Executive agencies to review
regulations in light of applicable standards in section 3(a) and
section 3(b) to determine whether they are met or it is unreasonable to
meet one or more of them. The Department has completed the required
review and determined that, to the extent permitted by law, this IFR
meets the relevant standards of E.O. 12988.
G. Review Under the Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4,
codified at 2 U.S.C. 1501 et seq.) is intended, among other things, to
curb the practice of imposing unfunded Federal mandates on State,
local, and tribal governments. UMRA requires Federal agencies to assess
a regulation's effects on State, local, and tribal governments, as well
as on the private sector, except to the extent the regulation
incorporates requirements specifically set forth in law. Title II of
the UMRA requires each Federal agency to prepare a written statement
assessing the effects of any regulation that includes any Federal
mandate in a proposed or final agency rule that may result in $100
million or more expenditure (adjusted annually for inflation) in any
one year by State, local, and Tribal governments, in the aggregate, or
by the private sector. By its terms, however, UMRA does not apply to
rules issued without notice and comment. Accordingly, the requirements
of URMA are not applicable to this IFR.
H. Review Under Executive Order 12630
Pursuant to E.O. 12630, Governmental Actions and Interference with
Constitutionally Protected Property Rights, 53 FR 8859 (Mar. 18, 1988),
the Department has determined that this IFR would not result in any
takings that might require compensation under the Fifth Amendment to
the U.S. Constitution.
I. Review Under the Treasury and General Government Appropriations Act,
1999
Section 654 of the Treasury and General Government Appropriations
Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family
Policymaking Assessment for any rule that may affect family well-being.
This proposed IFR would not have any impact on the autonomy or
integrity of the family as an institution. Accordingly, the Department
has concluded that it is not necessary to prepare a Family Policymaking
Assessment.
J. Review Under the Treasury and General Government Appropriations Act,
2001
Section 515 of the Treasury and General Government Appropriations
Act, 2001 (44 U.S.C. 3516, note) provides for Federal agencies to
review most disseminations of information to the public under
information quality guidelines established by each agency pursuant to
general guidelines issued by OMB. OMB's guidelines were published at 67
FR 8452 (Feb. 22, 2002). The Department has reviewed this IFR under the
OMB guidelines and has concluded that it is consistent with applicable
policies in those guidelines.
[[Page 47963]]
List of Subjects in 20 CFR Part 655
Administrative practice and procedure, Employment, Employment and
training, Enforcement, Foreign workers, Forest and forest products,
Fraud, Health professions, Immigration, Labor, Passports and visas,
Penalties, Reporting and recordkeeping requirements, Unemployment,
Wages, Working conditions.
For the reasons stated in the preamble, the DOL amends 20 CFR part
655 as follows:
PART 655--TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED
STATES
0
1. The authority citation for part 655 continues to read as follows:
Authority: Section 655.0 issued under 8 U.S.C.
1101(a)(15)(E)(iii), 1101(a)(15)(H)(i) and (ii), 8 U.S.C.
1103(a)(6), 1182(m), (n), and (t), 1184(c), (g), and (j), 1188, and
1288(c) and (d); sec. 3(c)(1), Pub. L. 101-238, 103 Stat. 2099, 2102
(8 U.S.C. 1182 note); sec. 221(a), Pub. L. 101-649, 104 Stat. 4978,
5027 (8 U.S.C. 1184 note); sec. 303(a)(8), Pub. L. 102-232, 105
Stat. 1733, 1748 (8 U.S.C. 1101 note); sec. 323(c), Pub. L. 103-206,
107 Stat. 2428; sec. 412(e), Pub. L. 105-277, 112 Stat. 2681 (8
U.S.C. 1182 note); sec. 2(d), Pub. L. 106-95, 113 Stat. 1312, 1316
(8 U.S.C. 1182 note); 29 U.S.C. 49k; Pub. L. 107-296, 116 Stat.
2135, as amended; Pub. L. 109-423, 120 Stat. 2900; 8 CFR
214.2(h)(4)(i); and 8 CFR 214.2(h)(6)(iii); and sec. 6, Pub. L. 115-
218, 132 Stat. 1547 (48 U.S.C. 1806).
Subpart A issued under 8 CFR 214.2(h).
Subpart B issued under 8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184(c),
and 1188; and 8 CFR 214.2(h).
Subpart E issued under 48 U.S.C. 1806.
Subparts F and G issued under 8 U.S.C. 1288(c) and (d); sec.
323(c), Pub. L. 103-206, 107 Stat. 2428; and 28 U.S.C. 2461 note,
Pub. L. 114-74 at section 701.
Subparts H and I issued under 8 U.S.C. 1101(a)(15)(H)(i)(b) and
(b)(1), 1182(n), and (t), and 1184(g) and (j); sec. 303(a)(8), Pub.
L. 102-232, 105 Stat. 1733, 1748 (8 U.S.C. 1101 note); sec. 412(e),
Pub. L. 105-277, 112 Stat. 2681; 8 CFR 214.2(h); and 28 U.S.C. 2461
note, Pub. L. 114-74 at section 701.
Subparts L and M issued under 8 U.S.C. 1101(a)(15)(H)(i)(c) and
1182(m); sec. 2(d), Pub. L. 106-95, 113 Stat. 1312, 1316 (8 U.S.C.
1182 note); Pub. L. 109-423, 120 Stat. 2900; and 8 CFR 214.2(h).
0
2. Amend Sec. 655.120 by revising paragraph (b) to read as follows:
Sec. 655.120 Offered wage rate.
* * * * *
(b) AEWR determinations. (1) Except for occupations governed by the
procedures in Sec. Sec. 655.200 through 655.235, the OFLC
Administrator will determine the AEWRs as follows:
(i) For occupations included in the field and livestock workers
(combined) category:
(A) If a statewide annual average hourly gross wage in the State at
each skill level, as required by paragraph (b)(2) of this section, is
reported by the Occupational Employment and Wage Statistics (OEWS)
survey, that wage shall be the AEWR for the State; or
(B) If a statewide annual average hourly gross wage in the State at
either skill level is not reported by the OEWS, the AEWR for the
occupations shall be the national annual average hourly gross wage at
that skill level, as reported by the OEWS survey.
(ii) For all other occupations:
(A) The AEWR for each occupation shall be the statewide annual
average hourly gross wage for that occupation in the State at each
skill level, as reported by the OEWS survey; or
(B) If a statewide annual average hourly gross wage in the State at
either skill level is not reported by the OEWS survey, the AEWR for
each occupation shall be the national annual average hourly gross wage
for that occupation at that skill level, as reported by the OEWS
survey.
(iii) The AEWR methodologies described in paragraphs (b)(1)(i) and
(ii) of this section shall apply to all job orders submitted, as set
forth in Sec. 655.121, on or after October 2, 2025, including job
orders filed concurrently with an Application for Temporary Employment
Certification to the NPC for emergency situations under Sec. 655.134.
(iv) For purposes of this section, the terms State and statewide
include the 50 States, the District of Columbia, Guam, Puerto Rico, and
the U.S. Virgin Islands.
(2) The OFLC Administrator shall determine the AEWRs described in
paragraphs (b)(1)(i) and (ii) of this section at two skill levels.
(i) Skill level I shall be computed as the arithmetic mean of the
first one-third of the wage distribution for the occupation(s); and
(ii) Skill level II shall be computed as the arithmetic mean of the
entire wage distribution for the occupation(s).
(3) Notwithstanding 20 CFR 655.122(d), the OFLC Administrator shall
establish a downward annual AEWR compensation adjustment for each State
computed as an equivalent hourly rate based on the weighted statewide
average of fair market rents for a four-bedroom housing unit available
from the Department of Housing and Urban Development, provided that
such adjustment shall not exceed 30 percent of the AEWRs determined
under paragraphs (b)(1)(i) and (ii) of this section. The statewide
annual hourly AEWR based on this compensation adjustment shall be
determined separately and only apply to H-2A workers sponsored under
the Application for Temporary Employment Certification.
(4) The OFLC Administrator will publish a notice in the Federal
Register, at least once in each calendar year, on a date to be
determined by the OFLC Administrator, establishing each AEWR and
corresponding housing compensation adjustment under this section. The
updated AEWR and corresponding housing compensation adjustment under
this section will be effective as of the date of publication of the
notice in the Federal Register.
(5) 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 higher than the highest of the
previous AEWR; a prevailing wage 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; or the State minimum wage,
the employer must pay at least the updated AEWR beginning on the date
the updated AEWR is published in the Federal Register.
(6) 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.
(7) The occupational classification and applicable AEWR shall be
determined based on the majority (meaning more than 50 percent) of the
workdays during the contract period the worker will spend performing
the agricultural labor or services, including duties that are closely
and directly related, and the qualifications on the job order.
* * * * *
Susan Frazier,
Acting Assistant Secretary for Employment and Training, Labor.
[FR Doc. 2025-19365 Filed 9-30-25; 4:15 pm]
BILLING CODE 4510-FP-P