H-2A Program

This issue tracker focuses on a comprehensive listing of federal statutes, regulations and executive actions governing the H2-A visa program for temporary agricultural workers, as well as selected litigation. This issue tracker covers the period from 2018 to present.

While the Center for Agricultural and Shale Law makes every effort to maintain and update the content furnished in this tracker, no warranty or other guarantee is made regarding the timeliness or accuracy of any information provided. If you spot incorrect or missing information, feel free to contact us. 

2.25.22 – The U.S. Citizenship and Immigration Services (USCIS) introduced the H-2A Employer Data Hub, a new online publicly searchable database of employers who have petitioned for H-2A workers from 2015 through 2021. Users can search the data by employer name, city, state, worksite state, ZIP code, U.S. Census Bureau North American Industry Classification System (NAICS) code, and U.S. Bureau of Labor Statistics Standard Occupational Classification (SOC) code. According to USCIS, the data does not include pending petitions or later decisions such as approved petitions that were later revoked or decisions on appeal. USCIS plans to update the data quarterly.

4.3.19 – The U.S Department of Agriculture (USDA) announced a new online resource, the H-2A Visa Checklist Tool, to help agricultural employers understand the H-2A visa program. The tool guides users through a series of questions and answers to provide information about the program’s timeline, requirements, fees, and forms.

3.7.24 – The U.S. House Committee on Agriculture’s Agricultural Labor Working Group released a final report proposing significant reforms to the H-2A program for temporary agricultural workers. Additionally, the group unanimously recommended the creation of a single H-2A applicant portal, a federal heat standard to protect H-2A workers from extreme heat, and year-round access to the H-2A program for certain industries, including livestock, poultry, dairy peanuts, sugar beets, sugarcane, and forestry.  

1.11.24 – A group of 75 Congress members urged in a letter the chairwomen and ranking members of the House and Senate Committees on Appropriations to freeze wages for H-2A temporary agricultural workers in upcoming funding legislation. The letter notes that “[t]he national average [Adverse Effect Wage Rate] has already more than doubled over the past two decades, making agricultural guest labor unaffordable for farm employers and resulting in higher consumer costs.” Additionally, Congress members highlighted that the America Farm Bureau Federation projects the AEWR to reach $17.55 per hour in 2024, a 5% increase from 2023. This raises concerns about competitiveness, as producers in Canada pay around $11 per hour and Mexico as little as $1.50 per hour for agricultural workers.

11.7.23 – The House Agricultural Labor Working Group (HALWG) published an interim report outlining the findings from its five roundtable meetings held over the previous four months. The report details each roundtable topic: (1) History of Ag Labor and H-2A Reform in the United States; (2) Accessibility Challenges in Agricultural Labor and H-2A; (3) Current Complexities of the H-2A Program; (4) Labor Perspectives of the H-2A Program; and (5) Producer Perspectives of the H-2A Program. The report revealed that 52% of producers surveyed cited either the program’s complexity or its expense as their primary reasons for not participating in the H-2A Visa Program. In response to this feedback, the HALWG is actively seeking input from interested parties, which may be used to create a list of recommendations for the House Committee on the Judiciary.

11.1.23 – A bipartisan group of 28 U.S. Senators sent a letter to the U.S. Department of Homeland Security (DHS) requesting that the agency extend the comment period an additional 60 days for the proposed rule titled “Modernizing H-2A Program Requirements, Oversight, and Worker Protections” (88 FR 65040) published in the Federal Register on September 20, 2023. The public comment period was set to end on November 20, 2023. In their letter, the senators expressed concern that “[a]ny proposed regulatory changes to the H-2A program [could] have potential ramifications for the entire American agricultural supply chain and food security.” They argued that it is critical that agricultural stakeholders be given sufficient time to fully understand the potential impacts of the rule and to submit meaningful comments.

3.22.21 – The Agriculture Workforce Coalition (AWC) sent a letter (signed by thirteen of the largest U.S. agricultural lobbying organizations, including American Farm Bureau Federation, National Milk Producers Federation, National Pork Producers’ Council and National Farmers Union) to U.S. Senate majority and minority leadership strongly urging the passage of legislation addressing “America’s agricultural labor crisis,” stating that “many farmers do not see a future in labor-intensive agriculture and the margins between profitability and loss disappear due to the federal government’s outdated policies and broken immigration system.” The letter follows the March 18, 2021 U.S. House of Representatives’ passage of H.R. 1603, “Farm Workforce Modernization Act of 2021,” now pending in the U.S. Senate Judiciary Committee. On March 18, 2021, President Biden issued a statement in support of H.R. 1603. 

Wage rates

5.8.24 – The Department of Labor (DOL) Employment and Training Administration (ETA) published a ratification in the Federal Register concerning the rule titled “Adverse Effect Wage Rate Methodology for the Temporary Employment of H-2A Nonimmigrants in the Non-Range Occupations in the United States” (88 FR 12760), which was published on February 28, 2023. The rule established a new method for determining wages for temporary foreign agricultural workers in non-range occupations. The DOL stated that, due to potential uncertainty arising from litigation over the past year, “[t]he Department is issuing this ratification out of an abundance of caution, and this ratification is not a statement that the Final Rule is invalid absent this ratification.” The DOL signed the ratification on May 3, 2024.  

11.22.23 – The U.S. Department of Agriculture (USDA) National Agricultural Statistics Service (NASS) published its semi-annual November 2023 Farm Labor Report, a comprehensive compilation of wage data collected in May and November each year. NASS categorizes the data by worker type, wage rates, employment numbers, and hours worked across regions and the nation, as well as wage rates and hired workers based on economic class and farm type. The data in the Farm Labor Report serves as the foundation for determining the 2024 Adverse Effect Wage Rate (AEWR) for the H-2A temporary agricultural worker program.

12.14.23 – The Department of Labor (DOL) Employment and Training Administration (ETA) published two notices in the Federal Register announcing the 2024 adverse effect wage rates (AEWRs) for H-2A temporary agricultural workers in range (88 FR 86679) non-range agricultural occupations (88 FR 86677). For range occupations, a uniform monthly AEWR of $1,986.76 applies nationwide, while the non-range AEWR varies across states, ranging from $14.53 in Arkansas, Louisiana, and Mississippi to $20.72 in the District of Columbia, effective January 1, 2024. While the published non-range AEWRs are based on data from the U.S. Department of Agriculture’s (USDA) November 2023 Farm Labor Report, the DOL ETA emphasized that, pursuant to the February 2023 final rule modifying the AEWR methodology, the DOL is mandated to issue a subsequent Federal Register notice “updat[ing] … non-range AEWRs based on data reported by the [Bureau of Labor Statistics Occupational Employment and Wage Statistics] survey, effective on or about July 1.”

6.16.23 – The Department of Labor (DOL) Employment and Training Administration (ETA) published a notice in the Federal Register, titled “Labor Certification Process for the Temporary Employment of Foreign Workers in Agriculture in the United States: Adverse Effect Rate Updates for Non-Range Occupations.” The DOL ETA updated the Adverse Effect Wage Rates (AEWR) for H-2A workers. These minimum wage rates are based on data from the U.S. Bureau of Labor Statistics’ (BLS) Occupational Employment and Wage Statistics (OEWS) survey. Employers of H-2A workers must pay the highest of the AEWR, a prevailing rate wage (if applicable), the collective bargaining rate, the federal minimum wage, or the state minimum wage. If the AEWR is updated during the worker’s contract period, the employer must adjust the worker’s pay to match the new AEWR. The hourly AEWRs are determined using a methodology established in the February 28, 2023, final rule (88 FR 12760). The AEWRs became effective on July 1, 2023.

2.28.23 – The U.S. Department of Labor (DOL) Employment and Training Administration (ETA) published a final rule in the Federal Register, titled “Adverse Effect Wage Rate Methodology for the Temporary Employment of H-2A Nonimmigrants in Non-Range Occupations in the United States.” The rule amends the methods used to calculate the hourly Adverse Effect Wage Rates (AEWRs) for non-range occupations. The DOL will use a dual data source strategy that integrates the USDA’s Farm Labor Survey (FLS) and the DOL’s Bureau of Labor Statistics’ Occupational Employment and Wage Statistics (OEWS) survey. The rule became effective on March 30, 2023.

12.16.22 – The U.S. Department of Labor (DOL) Employment and Training Administration (ETA) published two notices in the Federal Register announcing the 2023 adverse effect wage rates (AEWR) for H-2A temporary agricultural workers in range (87 FR 77141) and non-range (87 FR 77142) agricultural occupations. Range occupations consist of “herding or production of livestock on the range” while non-range occupations involve “agricultural labor or services other than the herding or production of livestock on the range.” The 2023 AEWR for range occupations is $1,901.21 per month. The 2023 non-range AEWR varies by state and is based on the combined 2022 wage rate for field and livestock workers from the U.S. Department of Agriculture (USDA) National Agricultural Statistics Service’s (NASS) most recent Farm Labor report, published on November 23, 2022. The 2023 non-range AEWR for Pennsylvania is $16.55. All 2023 AEWRs became effective on January 1, 2023. For a detailed analysis of the AEWR, see the American Farm Bureau Federation’s Examining the 2023 AEWR.

12.15.21 – The U.S. Department of Labor (DOL) Employment and Training Administration (ETA) published two notices in the Federal Register announcing the 2022 adverse effect wage rates (AEWRs) for H-2A temporary agricultural workers in range (86 FR 71283) and non-range (86 FR 71282) agricultural occupations. Range occupations consist of “herding or production of livestock on the range” while non-range occupations involve “agricultural labor or services other than the herding or production of livestock on the range.” The 2022 AEWR for range occupations is $1,807.23 per month. The 2022 non-range AEWR varies by state and is based on the combined 2021 wage rate for field and livestock workers from the U.S. Department of Agriculture (USDA) National Agricultural Statistics Service’s (NASS) most recent Farm Labor report, published on November 24, 2021. The 2022 non-range AEWR for Pennsylvania is $15.54. All 2022 AEWRs became effective on December 29, 2021.

2.23.21 – The Department of Labor (DOL) Employment and Training Administration (ETA) published a notice the Federal Register announcing the 2021 adverse effect wage rates (AEWRs) for H-2A temporary agricultural workers in non-range occupations. Non-range occupations involve “agricultural labor or services other than the herding or production of livestock on the range.” The 2021 non-range AEWR varies by state and is based on the combined 2020 wage rate for field and livestock workers from the U.S. Department of Agriculture (USDA) National Agricultural Statistics Service’s (NASS) most recent Farm Labor report, published on February 11, 2021. The 2021 non-range AEWR for Pennsylvania is $14.05. The AEWR rate for H-2A non-range occupations became effective on February 23, 2021.

12.15.20 – The U.S. Department of Labor (DOL) Employment and Training Administration (ETA) published a notice in the Federal Register announcing the 2021 adverse effect wage rates (AEWRs) for H-2A temporary agricultural workers in range occupations. Range occupations consist of “herding or production of livestock on the range” and the 2021 AEWR for range occupations is $1,727.75 per month.

11.5.20 – The U.S. Department of Labor’s (DOL) Employment and Training Administration (ETA) published a final rule in the Federal Register, titled “Adverse Effect Wage Rate Methodology for the Temporary Employment of H-2A Nonimmigrants in Non-Range Occupations in the United States.” This new rule revised the method for calculating hourly Adverse Effect Wage Rates (AEWRs) for non-range agricultural occupations.

12.19.19 – The U.S. Department of Labor (DOL) Employment and Training Administration (ETA) published two notices in the Federal Register announcing the 2020 adverse effect wage rates (AEWRs) for H-2A temporary agricultural workers in range (84 FR 69768) and non-range (84 FR 69774) agricultural occupations. Range occupations consist of “herding or production of livestock on the range” while non-range occupations involve “agricultural labor or services other than the herding or production of livestock on the range.” The 2020 AEWR for range occupations is $1,682.33 per month. The 2020 non-range AEWR varies by state and is based on the combined 2019 wage rate for field and livestock workers from the U.S. Department of Agriculture (USDA) National Agricultural Statistics Service’s (NASS) most recent Farm Labor report. The 2020 non-range AEWR for Pennsylvania is $13.34. The 2020 AEWR for range and non-range occupations became effective on January 1, 2020, and January 2, 2020, respectively.

12.26.18 – The U.S. Department of Labor (DOL) Employment and Training Administration (ETA) published two notices in the Federal Register announcing the 2019 adverse effect wage rates (AEWRs) for H-2A temporary agricultural workers in range (83 FR 66307) and non-range (83 FR 66306) agricultural occupations. Range occupations consist of “herding or production of livestock on the range” while non-range occupations involve “agricultural labor or services other than the herding or production of livestock on the range.” The 2019 AEWR for range occupations is $1,633.33 per month. The 2019 non-range AEWR varies by state and is based on the combined 2018 wage rate for field and livestock workers from the U.S. Department of Agriculture (USDA) National Agricultural Statistics Service’s (NASS) most recent Farm Labor report. The 2019 non-range AEWR for Pennsylvania is $13.15. The 2019 AEWR for range and non-range occupations became effective on January 1, 2019, and on January 9, 2019.

Annual updates on allowable charges

2.13.24 – The Department of Labor (DOL) Employment and Training Administration (ETA) published a notice in the Federal Register, titled “Labor Certification Process for the Temporary Employment of H-2A and H-2B Foreign Workers in the United States: Annual Update to Allowable Monetary Charges for Agricultural Workers’ Meals and for Travel Subsistence Reimbursement, Including Lodging.” The DOL ETA released its annual notice outlining the allowable charges for meals and travel reimbursement for H-2A and H-2B workers. For 2024, employers can charge H-2A workers a maximum of $15.88 per day for three meals per day if they are provided with employer-provided housing. H-2A and H-2B workers can claim a maximum of $59.00 per day for travel reimbursement if they have receipts to support their expenses.

2.9.23 – The U.S. Department of Labor (DOL) Employment and Training Administration (ETA) published a notice in the Federal Register, titled “Labor Certification Process for the Temporary Employment of H-2A and H-2B Foreign Workers in the United States: Annual Update to Allowable Charges for Agricultural Workers’ Meals and for Travel Subsistence Reimbursement, Including Lodging.” The DOL ETA released its annual notice outlining the allowable charges for meals and travel reimbursement for H-2A and H-2B workers. For 2023, employers can charge H-2A workers a maximum of $15.46 per day for three meals per day if they are provided with employer-provided housing. H-2A and H-2B workers can claim a maximum of $59.00 per day for travel reimbursement if they have receipts to support their expenses.

2.23.22 – The U.S. Department of Labor (DOL) Employment and Training Administration (ETA) published a notice in the Federal Register, titled “Labor Certification Process for the Temporary Employment of H-2A and H-2B Foreign Workers in the United States: Annual Update to Allowable Charges for Agricultural Workers’ Meals and for Travel Subsistence Reimbursement, Including Lodging. The DOL ETA released its annual notice outlining the allowable charges for meals and travel reimbursement for H-2A and H-2B workers. For 2022, H-2A employers can charge workers a maximum of $14.00 per day for three meals per day if they are provided with employer-provided housing. H-2A and H-2B workers can claim a maximum of $59.00 per day for travel reimbursement, as long as they have receipts to support their expenses.

3.10.21 – The U.S. Department of Labor (DOL) Employment and Training Administration (ETA) published a notice in the Federal Register, titled “Labor Certification Process for the Temporary Employment of H-2A and H-2B Foreign Workers in the United States: Annual Update to Allowable Charges for Agricultural Workers’ Meals and for Travel Subsistence Reimbursement, Including Lodging. The DOL ETA released its annual notice outlining the allowable charges for meals and travel reimbursement for H-2A and H-2B workers. For 2021, H-2A employers can charge workers a maximum of $13.17 per day for three meals per day if they are provided with employer-provided housing. H-2A and H-2B workers can claim a maximum of $55.00 per day for travel reimbursement, as long as they have receipts to support their expenses.

3.20.20 – The U.S. Department of Labor (DOL) Employment and Training Administration (ETA) published a notice in the Federal Register, titled “Labor Certification Process for the Temporary Employment of H-2A and H-2B Foreign Workers in the United States: Annual Update to Allowable Charges for Agricultural Workers’ Meals and for Travel Subsistence Reimbursement, Including Lodging. The DOL ETA released its annual notice outlining the allowable charges for meals and travel reimbursement for H-2A and H-2B workers. For 2020, H-2A employers can charge workers a maximum of $12.68 per day for three meals per day if they are provided with employer-provided housing. H-2A and H-2B workers can claim a maximum of $55.00 per day for travel reimbursement if they have receipts to support their expenses.

3.22.19 – The U.S. Department of Labor (DOL) Employment and Training Administration (ETA) published a notice in the Federal Register, titled “Labor Certification Process for the Temporary Employment of H-2A and H-2B Foreign Workers in the United States: Annual Update to Allowable Charges for Agricultural Workers’ Meals and for Travel Subsistence Reimbursement, Including Lodging. The DOL ETA released its annual notice outlining the allowable charges for meals and travel reimbursement for H-2A and H-2B workers. For 2019, H-2A employers can charge workers a maximum of $12.46 per day for three meals per day if they are provided with employer-provided housing. H-2A and H-2B workers can claim a maximum of $55.00 per day for travel reimbursement if they have receipts to support their expenses.

3.21.18 – The U.S. Department of Labor (DOL) Employment and Training Administration (ETA) published a notice in the Federal Register, titled “Labor Certification Process for the Temporary Employment of H-2A and H-2B Foreign Workers in the United States: Annual Update to Allowable Charges for Agricultural Workers’ Meals and for Travel Subsistence Reimbursement, Including Lodging.) The DOL ETA released its annual notice outlining the allowable charges for meals and travel reimbursement for H-2A and H-2B workers. For 2019, H-2A employers can charge workers a maximum of $12.26 per day for three meals per day if they are provided with employer-provided housing. H-2A and H-2B workers can claim a maximum of $51.00 per day for travel reimbursement, as long as they have receipts to support their expenses.

Eligibility for participation

11.10.22 – The U.S. Department of Homeland Security (DHS) Office of the Secretary published a notice in the Federal Register, titled “Identification of Foreign Countries Whose Nationals are Eligible to Participate in the H-2A and H-2B Nonimmigrant Worker Programs.” The U.S. Citizenship and Immigration Services (USCIS) can only approve H-2A and H-2B petitions for nationals from countries designated by DHS and DOS in the Federal Register. In 2022, 86 countries were eligible for H-2A status and 87 for H-2B status. This designation was effective from November 10, 2022, to November 10, 2023.

11.10.21 – The U.S. Department of Homeland Security (DHS) published a notice in the Federal Register, titled “Identification of Foreign Countries Whose Nationals are Eligible to Participate in the H-2A and H-2B Nonimmigrant Worker Programs.” The U.S. Citizenship and Immigration Services (USCIS) can only approve H-2A and H-2B petitions for nationals from countries designated by DHS and DOS in the Federal Register. In 2021, 85 countries were eligible for H-2A status and 86 for H-2B status. This designation was effective from November 10, 2021, to November 10, 2022, and superseded the earlier notice dated January 13, 2021.

1.13.21 – The U.S. Department of Homeland Security (DHS) published a notice in the Federal Register, titled “Identification of Foreign Countries Whose Nationals are Eligible to Participate in the H-2A and H-2B Nonimmigrant Worker Programs.” The U.S. Citizenship and Immigration Services (USCIS) can only approve H-2A and H-2B petitions for nationals from countries designated by DHS and DOS in the Federal Register. In 2021, 81 countries were eligible for H-2A status and 80 for H-2B status. This designation is valid from January 19, 2021, to January 18, 2022.

1.17.20 – The U.S. Department of Homeland Security (DHS) U.S. Citizenship and Immigration Services (USCIS) published a notice in the Federal Register, titled “Identification of Foreign Countries Whose Nationals are Eligible to Participate in the H-2A and H-2B Nonimmigrant Worker Programs.” The U.S. Citizenship and Immigration Services (USCIS) can only approve H-2A and H-2B petitions for nationals from countries designated by DHS and DOS in the Federal Register. In 2021, 84 countries were eligible for H-2A status and 81 for H-2B status. This designation is valid from January 19, 2020, to January 18, 2021.

1.18.19 – The U.S. Department of Homeland Security (DHS) U.S. Citizenship and Immigration Services (USCIS) published a notice in the Federal Register, titled “Identification of Foreign Countries Whose Nationals are Eligible to Participate in the H-2A and H-2B Nonimmigrant Worker Programs.” The U.S. Citizenship and Immigration Services (USCIS) can only approve H-2A and H-2B petitions for nationals from countries designated by DHS and DOS in the Federal Register. In 2021, 84 countries were eligible for H-2A status and 81 for H-2B status. This designation is valid from January 19, 2019, to January 18, 2020.

1.18.18 – The U.S. Department of Homeland Security (DHS) U.S. Citizenship and Immigration Services (USCIS) published a notice in the Federal Register, titled “Identification of Foreign Countries Whose Nationals are Eligible to Participate in the H-2A and H-2B Nonimmigrant Worker Programs.” The U.S. Citizenship and Immigration Services (USCIS) can only approve H-2A and H-2B petitions for nationals from countries designated by DHS and DOS in the Federal Register. In 2021, 83 countries were eligible for H-2A status and 82 for H-2B status. This designation is valid from January 18, 2018, to January 18, 2019.

Workplace safety measures

5.8.24 – The Department of Labor (DOL) Occupational Safety and Health Administration (OSHA) announced that it will prioritize scheduled inspections of agricultural workplaces that employ nonimmigrants H-2A workers for seasonal labor as part of its National Emphasis Program—Outdoor and Indoor Heat-Related Hazards.  

4.24.24 – The Department of Labor (DOL) Occupational Safety and Health Administration (OSHA) introduced the regulatory framework for its rulemaking on preventing heat injuries and illnesses in both outdoor and indoor work environments to the Advisory Committee on Construction Safety and Health. The committee unanimously recommended that OSHA proceed promptly with the Notice of Proposed Rulemaking (OSHA-2021-0009). OSHA stated that it will consider feedback from a diverse range of stakeholders and the general public while developing and finalizing the rule. 

Worker rights and protections

12.18.24 – The U.S. Department of Homeland Security (DHS) U.S. Citizenship and Immigration Services (USCIS) published a final rule in the Federal Register, titled “Modernizing H-2 Program Requirements, Oversight, and Worker Protections” (89 FR 103202). The rule provides H-2A and H-2B workers with whistleblower protection for reporting program violations by their employers, aligning their protections with those of H-1B workers. It also extends grace periods for workers seeking new employments, preparing to depart the United States, or changing their immigration status. Furthermore, the rule makes H-2 portability permanent, allowing businesses facing labor shortages to hire H-2 workers who are already legally present in the United States while the business’s H-2 petition for the worker is pending. The proposed rule was published on September 20, 2023 and the public comment period ended on November 20, 2023.

4.29.24 – The Department of Labor (DOL) Employment and Training Administration (ETA) and Wage and Hour Division (WHD) published a final rule in the Federal Register, titled “Improving Protections for Workers in Temporary Agricultural Employment in the United States” (89 FR 33898). The rule (1) prohibits employers from engaging in any form of discrimination against workers who exercise their right to engage in self-organization or who decline to attend employer-sponsored meetings about the employer’s perspectives on protected activities; (2) grants workers the right to invite and receive guests, including labor union representatives, in employer-provided housing; (3) defines “just cause” termination as dismissal that occurs only “when the worker either fails to comply with employer policies or fails to perform job duties satisfactorily after … the transparent application of a system of progressive discipline;” (4) establishes updated minimum wage rates effective upon publication in the Federal Register; (5) requires employers who fail to give adequate notice of a delayed start date to compensate workers the applicable rate for each day the work is delayed for up to two weeks; (6) requires employers to provide vehicles with seat belts; and (7) prohibits employers from holding or confiscating a worker’s passport, visa, or other identification documents. The rule is set to become effective on June 28, 2024; however, H-2A applications submitted prior to August 28, 2024, will be processed under the regulations in effect as of June 27, 2024.

10.12.22 – The U.S. Department of Labor (DOL) Employment and Training Administration (ETA) published a final rule in the Federal Register, titled “Temporary Agricultural Employment of H-2A Nonimmigrants in the United States.” The rule brings about several improvements to the H-2A program, including improving protection for American and H-2A workers and updating the application process. The rule became effective on November 14, 2022.

12.16.21 – The U.S. Department of Labor (DOL) Employment and Training Administration (ETA) published a final rule in the Federal Register, titled “Adjudication of Temporary and Seasonal Need for Herding and Production of Livestock on the Range Applications Under the H-2A Program.” The DOL ETA amended its regulations regarding the adjudication of temporary need for H-2A workers involved in herding or production of livestock on the range. This rule is consistent with a court-approved settlement and removes a specific provision governing the period of need for H-2A workers. The DOL will now assess the temporary or seasonal nature of all temporary agricultural labor certification applications the same way. The rule became effective on January 18, 2022. 

Housing and transportation standards

7.10.18 – The U.S. Department of Agriculture (USDA) issued internal guidance regarding changes to farm labor housing eligibility. The Consolidated Appropriations Act of 2018 expanded eligibility for farm labor housing to include domestic farm laborers who are legally admitted to the United States on an H-2A work visa.

Recruitment

9.20.19 – The U.S. Department of Labor (DOL) Employment and Training Administration (ETA) published a final rule in the Federal Register, titled “Modernizing Recruitment Requirements for the Temporary Employment of H-2A Foreign Workers in the United States.” The rule lifted the requirements for employers seeking H-2A worker certification to advertise available job openings in print newspapers. Additionally, the rule shifted the labor market test to the DOL website, SeasonalJobs.dol.gov.

Temporary measures due to COVID-19

12.18.20 – The U.S. Department of Homeland Security (DHS) U.S. Citizenship and Immigration Services (USCIS) published a final rule in the Federal Register, titled “Temporary Changes to Requirements Affecting H-2A Nonimmigrants due to the COVID-19 National Emergency: Extension of Certain Flexibilities.” In response to the COVID-19 pandemic, DHS and USCIS extended regulations to allow H-2A workers to begin work with a new employer immediately after receiving an extension of stay petition. This rule applied to petitions filed from December 18, 2020, to June 16, 2021, and extended the provisions published in August 2020. The rule was effective from December 18, 2020, to December 18, 2023.

8.20.20 – The U.S. Department of Homeland Security (DHS) published a final rule in the Federal Register, titled “Temporary Changes to Requirements Affecting H-2A Nonimmigrants Due to the COVID-19 National Emergency: Partial Extension of Certain Flexibilities.” In response to the COVID-19 pandemic, DHS and USCIS temporarily allowed H-2A workers to switch employers upon receiving an extension of stay petition. This rule applied to petitions filed from August 19, 2020, to December 17, 2020. 

4.20.20 – The U.S. Department of Homeland Security published a final rule in the Federal Register, titled “Temporary Changes to Requirements Affecting H-2A Nonimmigrants Due to the COVID-19 National Emergency.” DHS and USCIS temporarily lifted certain limitations on H-2A employers and workers. This included allowing H-2A employers whose extension of stay petitions were supported by valid temporary labor certifications issued by the DOL to begin work immediately after the extension of stay petition is received by USCIS. Additionally, H-2A workers were granted the right to stay in the United States beyond the 3-year maximum allowable period of stay. This temporary rule was effective from March 1, 2020, to August 18, 2020.

Challenges to the 2024 Final Rule, “Improving Protections for Workers in Temporary Agricultural Employment in the United States” (89 FR 33898)

International Fresh Produce Association, et al. v. U.S. Department of Labor, et al. [Case open]
USDC S.D. Mississippi, No. 1:24-cv-309

10.8.24 – A group composed of agricultural and business organizations alongside the state of Mississippi filed a complaint challenging the rule, titled “Improving Protections for Workers in Temporary Agricultural Employment in the United States.” The plaintiffs argued that the rule conflicts with the Immigration Reform and Control Act (IRCA), which is focused solely on certifying the need for temporary foreign workers, not on establishing labor protection requirements for all agricultural workers. They further argued that the rule improperly seeks to regulate labor relations in the agricultural sector, which Congress intentionally excluded from the scope of the National Labor Relations Act (NLRA). Additionally, they asserted that the rule infringes upon employers’ free speech rights.

• Plaintiffs filed an amended complaint (10.17.24)
• Plaintiffs filed a motion for a preliminary injunction or motion for a Section 705 stay along with a supporting memorandum (10.17.24)

11.25.24 – The federal district court issued a memorandum opinion and order granting plaintiffs’ motion for a preliminary injunction. The court also agreed to stay the effective date of the rule, pending the resolution of this case.

Barton, et al. v. U.S. Department of Labor, et al. [Case open]
USDC E.D. Kentucky, No. 5:24-cv-249

9.16.24 – Several parties, including Richard Barton, the Agriculture Workforce Management Association, and USA Farmers, Inc., filed a complaint against the Department of Labor challenging the rule, titled “Improving Protections for Workers in Temporary Agricultural Employment in the United States.” The plaintiffs argued that the rule is “unlawful and unprecedented” as it unfairly advantages foreign H-2A workers over domestic agricultural workers. They also argued that the DOL exceeded its legal authority in implementing the rule. The plaintiffs sought a court order declaring the rule void.

• Intervenors, the states of West Virginia, Alabama, Ohio, and Kentucky, filed a complaint (9.25.24)
• Plaintiff-intervenors filed a motion for a preliminary injunction (10.15.24)
• Plaintiffs filed a motion for a preliminary injunction and stay (10.17.24)

11.25.24 – The federal district court issued a memorandum opinion and order granting both motions for a preliminary injunction.

North Carolina Farm Bureau Federation Inc., et al. v. U.S. Department of Labor, et al. [Case open]
USDC E.D. North Carolina, No. 5:24-cv-527

9.13.24 – The North Carolina Farm Bureau Federation filed a complaint challenging the U.S. Department of Labor’s (DOL) rule, titled “Improving Protections for Workers in Temporary Agricultural Employment in the United States.” The Farm Bureau alleged that the rule unlawfully grants H-2A visa holders and certain domestic agricultural workers rights similar to those protected by the National Labor Relations Act (NLRA), exceeds the DOL’s authority under the Immigration Reform and Control Act (IRCA), represents a significant policy shift that requires clear congressional authorization, which the Department has not provided.

• Plaintiffs filed a motion for summary judgment (10.14.24)
• Defendants filed a cross-motion for summary judgment (11.22.24)

State of Kansas, et al. v. U.S. Department of Labor, et al. [Case open]
USDC S.D. Georgia, No. 2:24-cv-76

6.10.24 – The Attorneys General of Kansas and sixteen other states filed a complaint challenging the U.S. Department of Labor’s (DOL) rule, titled “Improving Protections for Workers in Temporary Agricultural Employment in the United States” (89 FR 33898). The complaint alleged that the rule—which protects certain collective bargaining activities for H-2A visa-holding agricultural workers—is “arbitrary and capricious” and unlawfully grants federal rights to alien worlers that are not afforded to Americans.

• Plaintiffs filed a motion for a preliminary injunction (6.13.24)
• The federal district court granted plaintiffs’ motion for a preliminary injunction (8.26.24)
• Plaintiffs filed a motion for summary judgment (10.2.24)
• Defendants filed a motion for summary judgment (10.23.24)

Challenges to the 2023 Final Rule, “Adverse Effect Wage Rate Methodology for the Temporary Employment of H-2A Nonimmigrants in Non-Range Occupations in the United States” (88 FR 12760)

USA Farm Labor, Inc., et al. v. Julie Su, et al. [Case open]
USDC W.D. North Carolina, No. 1:23-cv-96
Fourth Circuit, No. 23-2108

4.10.23 – A group of farm businesses filed a complaint against the U.S. Secretary of Labor challenging the final rule, titled Adverse Effect Wage Rate Methodology for the Temporary Employment of H-2A Nonimmigrants in Non-Range Occupations in the United States (88 FR 12760) published on February 28, 2023.

• Plaintiffs filed a first amended complaint (4.26.23)
• Plaintiffs filed a second amended complaint (5.24.23)
• Plaintiffs filed a motion for a preliminary injunction (5.26.23)
• Defendants filed a motion to dismiss for lack of jurisdiction (8.4.23)
• Plaintiffs filed a motion for a temporary restraining order (9.20.23)

9.26.23 – The federal district court denied defendants’ motion to dismiss plaintiffs’ complaint.

• Plaintiffs filed an appeal with the Fourth Circuit Court (10.23.23)
• Plaintiffs-appellants filed an opening brief (12.4.23)
• Defendants-appellees filed a response brief (1.31.24)
• Defendants filed a motion for summary judgment on all claims (3.15.24)
• Plaintiffs filed a cross-motion for summary judgment (3.15.24)

Florida Growers Association, Inc. et al. v. Su, et al. [Case open]
USDC M.D. Florida, No. 8:23-cv-889

4.21.23 – A group of agricultural associations filed a complaint seeking to vacate and enjoin the U.S. Department of Labor’s (DOL) final rule, “Adverse Effect Wage Rate Methodology for the Temporary Employment of H-2A Nonimmigrants in Non-Range Occupations in the United States” (88 FR 12760), published in the Federal Register on February 28, 2023.

• Plaintiffs filed a motion for a preliminary injunction along with a supporting memorandum (5.11.23)
• Defendants filed a motion to dismiss the case (6.27.23)
• Plaintiffs filed an amended complaint (4.12.24)
• Defendants filed a motion to dismiss count IV of the amended complaint (4.26.24)

6.7.24 – The federal district court granted the defendant’s motion to dismiss count IV of the amended complaint.

• Plaintiffs filed a motion for summary judgment (8.23.24)
• Defendants filed a cross-motion for summary judgment (8.23.24)

Teche Vermilion Sugar Cane Growers Association, Inc., et al. v. Su, et al. [Case open]
USDC W.D. Louisiana, No. 6:23-cv-831

6.21.23 – A collective of growers and farmers filed a complaint against the U.S. Department of Labor (DOL) challenging the final rule, “Adverse Effect Wage Rate Methodology for the Temporary Employment of H-2A Nonimmigrants in Non-Range Occupations in the United States” (88 FR 12760) issued on February 28, 2023.

• Plaintiffs filed a motion for a preliminary injunction (7.7.23)
• Defendants filed a partial motion to dismiss (8.25.23)
• Plaintiffs filed a first amended complaint (9.15.23)
• Defendants filed a motion to dismiss plaintiffs’ amended complaint for failure to state a claim (9.29.23)
• The federal district court granted plaintiffs’ motion for a preliminary injunction (9.18.24)
• Plaintiffs filed a motion for clarification and revision of the court’s order (9.26.24)
• The federal district court issued an amended preliminary injunction order (12.5.24)

Other Challenges

Vanegas v. Signet Builders, Inc. [Case closed]
USDC W.D. Wisconsin, No. 3:21-cv-54
Seventh Circuit, No. 21-2644
U.S. Supreme Court, No. 22-869

1.26.21 – Jose Vanegas, a Mexican H-2A worker, filed a complaint against his employer, Signet Builders, Inc., where he intermittently worked from 2004 to 2019 building livestock confinement structures. Vanegas alleged that Signet Builders, Inc. violated his and other workers’ rights under the Fair Labor Standards Act (FLSA) by failing to pay overtime wages. He sought to recover unpaid wages and additional damages.

• Plaintiff filed a motion to certify the case as a collective action under the FLSA (3.12.21)
• Defendant filed a motion to dismiss the complaint along with a supporting memorandum (4.7.21)

8.12.21 – The federal district court issued an opinion and order granting the defendant’s motion to dismiss.

• Plaintiff filed an appeal with the U.S. Court of Appeals for the Seventh Circuit (9.8.21)
• Plaintiff-appellant filed an opening brief (11.30.21)
• Defendant-appellee filed a response brief (2.3.22)

8.19.22 – The Seventh Circuit Court reversed the district court’s ruling that the appellant’s work qualified for an overtime exemption under the Fair Labor Standards Act (FLSA).

• Plaintiff filed a petition for writ of certiorari (3.6.23)
• Respondent filed a brief in opposition (6.14.23)
• Petitioner filed a reply brief (6.28.23)

10.2.23 – The U.S. Supreme Court denied to hear the case.

United Farm Workers, et al. v. U.S. Department of Labor, et al. [Case closed]
USDC E.D. California, No. 1:20-cv-1690

11.30.20 – United Farm Workers (UFW) filed a complaint seeking injunctive relief against the U.S. Department of Labor’s (DOL) Final Rule, titled “Adverse Effect Wage Rate Methodology for the Temporary Employment of H-2A Nonimmigrants in Non-Range Occupations in the United States” (85 FR 70445), published in the Federal Register on November 5, 2020. The complaint alleges that the rule violated the Immigration and Nationality Act (INA) by failing to protect U.S. farmworkers from the adverse effects caused by wage stagnation or depression due to an influx of foreign guestworkers.

• Plaintiffs filed a motion for a preliminary injunction against the rule (11.30.20)
• The federal district court granted plaintiffs’ motion for a preliminary injunction (12.23.20)
• Plaintiffs filed a motion for summary judgment (1.5.22)

4.4.22 – The federal district court granted summary judgment for the plaintiffs. The court also vacated and remanded the rule to the Department of Labor for further rulemaking.