US Department of Labor announces final rule to modify how it sets adverse effect wage rates in the H-2A program

WASHINGTON – The U.S. Department of Labor today announced it will publish a final rule to amend how the Adverse Effect Wage Rates for the H-2A program are set to improve the rates’ consistency and accuracy based on the work actually performed by these workers and to better prevent H-2A workers’ employment negatively affecting the wages of U.S. workers in similar positions.

The H-2A program allows employers to address temporary labor needs by employing foreign agricultural workers when a lack of U.S. workers for the positions exists, and as long as hiring non-U.S. workers does not adversely affect the wages and working conditions of U.S. workers in similar jobs. The program’s Adverse Effect Wage Rates is the wage below which there would be an adverse effect on the wages of U.S. workers.     

The department uses the data for field and livestock workers combined as reported by the Department of Agriculture’s Farm Labor Survey to set the Adverse Effect Wage Rate, but on a few occasions in recent years, the FLS has not been conducted. In December 2021, the department proposed using the Bureau of Labor Statistics’ Occupational Employment and Wage Statistics survey to set the Adverse Effect Wage Rate for field and livestock workers if the FLS is not available. At the same time, the department proposed that the Adverse Effect Wage Rates for all other H-2A job opportunities, such as when those occupations are not included in the FLS survey, be based on occupation-specific OEWS wage data to ensure accurate wage rates are offered and paid to workers performing more skilled jobs which command higher pay, such as supervisors of farmworkers, truck drivers and agricultural construction workers.

The final rule establishes the following methodology for determining Adverse Effect Wage Rates:

• The department will continue to use the average annual hourly wage as reported by the FLS for field and livestock workers, combined, occupations – which represent most agricultural jobs – for the state or region.

• For all other agricultural jobs, not represented adequately or reported by current FLS data, the department will use the statewide or national average annual hourly wages for the occupational classification reported by OEWS program.
• For job opportunities that cover more than one classification, the department will base adverse effect rates on the highest wage for the applicable occupations.

The Federal Register is scheduled to publish the final rule on Feb. 28.