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 and state administrative actions. This issue tracker covers the period from 2018 to present.

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. 

U.S. Department of Agriculture (USDA)

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.

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.

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. 

U.S. Department of Homeland Security (DHS) 

1.31.24 – The U.S. Department of Homeland Security (DHS) U.S. Citizenship and Immigration Services (USCIS) published in the Federal Register a final rule, titled “U.S. Citizenship and Immigration Services Fee Schedule and Changes to Certain Other Immigration Benefit Request Requirements.” The new rule increases fees for certain immigration benefit petitions, including petitions for H-2A nonimmigrant workers with unnamed and named beneficiaries: fees for unnamed beneficiaries rise from $460 to $530 while fees for named beneficiaries jump from $460 to $1,090. Small employers and nonprofits are exempt from the increase for unnamed beneficiaries, with their fee remaining at $460; however, their fee for named beneficiaries increases to $545. The rule is set to become effective on April 1, 2024.

9.20.23 – The U.S. Department of Homeland Security (DHS) U.S. Citizenship and Immigration Services (USCIS) published a notice of proposed rulemaking in the Federal Register, titled “Modernizing H-2 Program Requirements, Oversight, and Worker Protections.” The proposed rule would provide 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 would also extend grace periods for workers seeking new employments, preparing to depart the United States, or changing their immigration status. Furthermore, the proposed rule would make 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 public comment period ends on November 20, 2023.

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.

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.

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.

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.

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.

U.S. Department of Labor (DOL)

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.  

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.  

4.29.24 – 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.

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. 

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 Loding.” 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.

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.

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.

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.

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.

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.

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. 

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.

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.

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.

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.

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.

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.

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.

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.

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.

United Farm Workers, et al. v. U.S. Dept. 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 rule froze the Adverse Effect Wage Rate (AEWR) for two years, abandoned the previous method of calculation tied to the DOL’s Farm Labor Survey (FLS), and implemented a new calculation method effective January 1, 2023, tied to the DOL’s Employment Cost Index (ECI), which does not survey farms or agricultural workers. 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.

11.30.20 – Plaintiffs filed a motion for a preliminary injunction against the rule, alleging that it was unlawful and violated the Administrative Procedure Act (APA). They argued that the rule caused adverse effects for U.S. farmworkers, such as wage stagnation and depression, due to the influx of foreign farmworkers, and that it violated the Department of Labor’s (DOL) statutory mandate. Furthermore, they asserted that the rule was arbitrary and capricious because the DOL failed to provide a clear and convincing rationale for the changes it introduced. Additionally, they argued that the DOL had not complied with the APA’s notice-and-comment requirements, claiming that the final rule was not a “logical outgrowth of the initial proposal.”

12.23.20 – The district court granted a preliminary injunction against the Department of Labor’s (DOL) rule changing the calculation of the H-2A agricultural guest worker minimum wage. The court found that the plaintiffs were likely to succeed on the merits of their claim and that the rule fails to justify freezing wages below market rate and to analyze its impact on U.S. workers who the Immigration and Nationality Act (INA) mandates the DOL to protect.

1.5.22 – The plaintiffs filed a motion for summary judgment and asserted that the final rule was arbitrary and capricious, and a violation of the Administrative Procedure Act (APA). They further contended that the DOL’s failure to comply with the required notice-and-comment rulemaking procedures rendered the rule invalid.

4.4.22 – The U.S. District Court granted summary judgment for the plaintiffs. The court also vacated and remanded the rule to the DOL for further rulemaking.

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.

3.12.21 – The plaintiff filed a motion to certify the case as a collective action under the FLSA, requesting court approval to allow all H-2A workers employed by Signet Builders, Inc. in 2019-2020 to join the collective action.  

4.7.21 – Signet Builders, Inc., the defendant, filed a motion to dismiss the complaint along with a supporting memorandum, arguing that the plaintiff’s work is exempt from the overtime provisions of the Fair Labor Standards Act (FLSA) under 29 U.S.C. § 213(b)(12), which covers agricultural work as defined in 29 U.S.C. § 203(f). The plaintiff, who worked exclusively on farms constructing livestock confinement structures, qualifies as doing “secondary agriculture” under the FLSA. Additionally, the plaintiff was employed on a temporary H-2A visa for agricultural labor. The plaintiff’s claims that his work does not meet the agricultural exemption because he did not handle livestock and did not work on properties owned by Signet are invalid. Additionally, the court should also dismiss the complaint regarding former Signet employees who worked outside Wisconsin. Opt-in plaintiffs in an FLSA collection action must establish personal jurisdiction. Since Signet is incorporated in Texas, Wisconsin lacks general jurisdiction over the company.

8.12.21 – The court issued an opinion and order granting the defendant’s motion to dismiss and denying the plaintiff’s motion for conditional certification of class as moot. The court agreed with the defendant, ruling that the plaintiff’s work fell under the FLSA’s agricultural exemption, making him ineligible for overtime. More precisely, the court compared the plaintiff’s tasks, building animal confinement structures, to those in the Maneja v. Waialua Agricultural Co. case. In that case, workers performing tasks incidental to farming were exempt from overtime. The court found the plaintiff’s construction of farm structures was closely linked to agricultural operations, qualifying for the exemption. Consequently, the court granted the defendant’s motion to dismiss, rendering the plaintiff’s conditional certification motion moot.

9.8.21 – The plaintiff filed an appeal with the U.S. Court of Appeals for the Seventh Circuit, challenging the court’s decision to grant the defendant’s motion to dismiss the case and to deny the plaintiff’s motion for conditional certification as moot.

11.30.21 – The plaintiff-appellant filed his opening brief, arguing that the district court erred in applying the agricultural exemption without adequately considering the specifics of his work. The law exempts activities directly tied to the core functions of farming; however, the appellant’s work of constructing animal enclosures seems to be a separate activity that precedes actual farming. The appellants emphasized that past court rulings have established that activities must be directly related to agricultural functions to qualify for the exemption and the facts in this case do not conclusively support the appellee’s entitlement to the exemption from overtime pay under the FLSA.

2.3.22 – The defendant-appellee filed a response brief, asserting that the appellant’s work of building livestock enclosures qualifies as “secondary agriculture” and thus falls under the FLSA exemption for agricultural activities. He pointed out that the law defines “secondary agriculture” as activities performed on a farm that support farming operations. The appellee further argued that the appellant misinterpreted the U.S. DOL’s regulations on “Employment in practices on a farm.” He emphasized that the central issue is not “whether Signet is engaged in a separately organized productive activity but whether Luna Vanegas’ activities were directed toward the farmers’ agricultural activities,” rejecting the appellant’s arguments to amend the definition of “secondary agriculture.”

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 FLSA. The court disagreed, concluding that the appellee did not prove the agricultural exemption applied. It determined that building livestock enclosures is not inherently agricultural work and whether it qualifies as exempt requires a “fact-intensive inquiry.” Additionally, the court held that the appellant’s initial complaint sufficiently stated a claim for unpaid overtime, and the appellee cannot rely solely on an affirmative defense but must file an answer. The case was remanded for further proceedings.  

3.6.23 – The petitioner Signet Builders, Inc. filed a petition for writ of certiorari, requesting the U.S. Supreme Court to review the Seventh Circuit Court’s decision and reverse it, and to address the two following questions: (1) “[w]hether there is any room for a rule interpreting the FLSA’s exemptions narrowly, rather than fairly, after this Court’s decision in Encino Motorcars, LLC v. Navarro, 138 S.Ct. 1134 (2018); and (2) “[w]hether a person admitted to the United States on an agricultural guestworker visa who is employed on farms but performs secondary functions, like building on-site livestock confinement structures, comes within the FLSA’s broad agriculture exemption.

6.14.23 – The Respondent Jose Vanegas filed a brief in opposition, arguing that Signet did not properly raise its arguments challenging the applicability of the FLSA agricultural exemption rule. He further maintained that the Seventh Circuit Court’s decision was correct based on the relevant regulations and precedents.  

6.28.23 – The petitioner Signet Builders, Inc. filed a reply brief, arguing that the Seventh Circuit Court ignored the Supreme Court precedent set in Encino Motorcars v. Navarro, which rejected the “narrow-construction rule” for interpreting FLSA exemptions. The petitioner emphasized that the Seventh Circuit Court “ha[d] no license” to use the narrow construction rule and urged the Court to clarify that lower courts must follow the Encino precedent.  

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

National Council of Agricultural Employers v. U.S. Department of Labor [Case closed]
USDC D.C., No. 1:22-cv-3569

11.23.22 – The National Council of Agricultural Employers (NCAE) filed a complaint against the U.S. Department of Labor (DOL) seeking to vacate and enjoin the final rule, titled “Temporary Agricultural Employment of H-2A Nonimmigrants in the United States,” published in the Federal Register on October 12, 2022 (87 FR 61660). The NCAE complaint explains that the Trump administration had duly promulgated a previous version of the final rule in 2021 (84 FR 36168) in accordance with the Administrative Procedure Act (APA). However, the Biden administration withdrew that submission from the Federal Register before publication and, approximately 22 months later, published a substitute version of the final rule without following the APA’s public notice-and-comment process. 

11.25.22 – The National Council of Agricultural Employers (NCAE) filed an emergency motion for a temporary restraining order and preliminary injunction against the Biden administration’s 2022 rule on temporary agricultural employment of H-2A nonimmigrants. NCAE argued that if the final rule is not temporarily halted, NCAE and its members will suffer irreparable harm, including increased program costs, application processing delays, loss of crops and jobs, and difficulties for farm labor contractors (FLCs).

11.29.22 –In a minute entry, the U.S. District Court denied the National Council of Agricultural Employers’ (NCAE) emergency motion for a temporary restraining order and preliminary injunction against the Biden administration’s 2022 rule on temporary agricultural employment of H-2A nonimmigrants.

12.23.22 – The National Council of Agricultural Employers (NCAE) filed a renewed motion for a preliminary injunction against the Biden administration’s 2022 rule. NCAE argued the same as its emergency motion, alleging that the NCAE and its members will suffer irreparable harm, including increased program costs, application processing delays, loss of crops, profits, and jobs, and the exclusion of certain H-2A program users.

2.16.23 – The U.S. District Court denied the plaintiff’s reviewed motion for a preliminary injunction motion. The court held that the plaintiffs failed to show a strong likelihood of prevailing in their argument that the 2022 rule had been unlawfully enacted.

7.6.23 – The National Council of Agricultural Employers (NCAE) filed a motion for summary judgment, urging the court to declare the 2022 rule as arbitrary and capricious and to set it aside. The NCAE also asked the court to immediately reinstate the 2021 rule. Finally, the NCAE argued that the Office of the Federal Register violated the Federal Register Act by not promptly publishing the 2021 rule.

8.17.23 – The U.S. Department of Labor (DOL) Employment and Training Administration (ETA) filed a cross motion for summary judgment along with a supporting memorandum. The agency argued that the plaintiff lacked the legal standing to challenge the pre-public withdrawal of the 2021 draft final rule, because the plaintiff and its members had not suffered any actual injury as a result of the decision not to publish the document. Additionally, the agency asserted that they were entitled to summary judgment because they were not legally obligated to conduct a second comment period before finalizing the rule. Lastly, the agency argued that the plaintiff’s claims were baseless, as the plaintiff had failed to acknowledge that the 2021 draft final rule could be withdrawn without any further notice, even before it was made available for public review.

1.29.24 – The U.S. District Court issued a memorandum opinion, denying the National Council of Agricultural Employers’ (NCAE) motion for summary judgment and upholding the U.S. Department of Labor’s (DOL) 2022 final rule. The court found that the 2022 rule was properly promulgated because the earlier 2021 rule, which had not been officially published in the Federal Register, never became final. The court also found that the NCAE lacked standing to challenge the U.S. DOL’s withdrawal of the 2021 rule, because they could not demonstrate that any of their members suffered any injury in fact from that withdrawal. 

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. This final rule amended the methodology used to calculate AEWRs for H-2A non-range temporary agricultural workers. Historically, the Department of Labor (DOL) used the Farm Labor Survey to determine the AEWRs, which is specific to the agricultural industry. This methodology protected U.S. farmworker wages from being artificially lowered due to competition from foreign workers willing to accept lower wages. The new methodology, however, requires using the Occupational Employment and Wage Statistics (OEWS) survey, which does not reflect wages specific to the agricultural industry. The plaintiffs argued that the new methodology will negatively impact farms. They expressed concerns that the use of the OEWS will result in artificially inflated AEWRs for H-2A non-range workers, potentially causing significant financial burdens for agricultural businesses. The plaintiffs sought preliminary and permanent injunctive relief to prohibit the defendants from implementing or enforcing the final rule, an order vacating and setting aside the rule, and a declaration that the rule is unlawful under the Administrative Procedure Act.

4.26.23 – The plaintiffs filed a first amended complaint.  

5.24.23 – The plaintiffs filed a second amended complaint.  

5.26.23 – The plaintiffs filed a motion for a preliminary injunction to prevent the implementation and enforcement of the new rule. They argued that the rule exceeds DOL’s statutory authority and is arbitrary and capricious. If implemented, the rule will cause irreparable harm to the plaintiffs, further adding that “DOL intended to increase labor costs—something the new regulation certainly achieves. Those increased costs threaten the continued existence of [p]laintiffs, the livelihoods of the employees who work for them, and the economic vitality of the rural communities in which they live and operate.”

8.4.23 – The defendants filed a motion to dismiss for lack of jurisdiction, arguing the plaintiffs lacked standing under Article III. They contend that the plaintiffs have not shown any pending labor certifications or H-2A applications impacted by the new rule, nor have they shown plans to submit applications impacted by the rule in the future. Additionally, they argued that the alleged future harm is “speculative.”  

9.20.23 – The plaintiffs, Four R’s Ranch, LLC and USA Farm Labor filed a motion for a temporary restraining order to halt the implementation of the new rule. They argued that the harm caused by the rule was “no longer a realistic danger, it is an actual fact.” Specifically, they claimed the costs would “cripple” their businesses. USA Farm Labor asserted they were already losing customers due to the rule.  

9.26.23 – The U.S. District Court issued an order denying the defendants’ motion to dismiss plaintiffs’ complaint. The court found that the lack of current H2-A applications or pending labor certifications does not necessarily prevent the plaintiffs’ claims from proceeding. The court stated, “[w]hen the plaintiff is not himself the object of the government action or inaction, he challenges, standing is not precluded, but it is ordinarily substantially more difficult to establish.” However, USA Farm Labor presented evidence of harm caused by the new rule, including lost revenue and customers. They further argued that the rule would increase client costs, leading to anticipated future losses. The court found this evidence of lost revenue and clients sufficient to establish standing for the plaintiffs in this case. The court also denied plaintiffs’ motions for preliminary injunction and temporary restraining order. The court ruled that the plaintiffs had failed to provide enough evidence that the government agency exceeded its statutory authority or that the new rule was unreasonable. It also rejected the plaintiffs’ argument that considering only agricultural wages would better protect agricultural workers, stating that it amounted to a policy disagreement with the DOL rather than a compelling legal argument. Furthermore, the court noted that the DOL considered costs before adopting the rule; thus, it is likely that the plaintiffs’ argument that the rule was arbitrary and capricious will not succeed. Finally, the court concluded that the plaintiffs’ evidence only suggested potential future harm. It emphasized that a preliminary injunction requires more than just mere possibility of harm.  

10.23.23 – The plaintiffs appealed the district court’s denial of their motions for a preliminary injunction and a temporary restraining order to the U.S. Court of Appeals for the Fourth Circuit.  

12.4.23 – The plaintiffs-appellants filed their opening brief arguing that the district court erred in denying their motions for injunctive relief. The plaintiffs reiterated their claims that the rule is both arbitrary and capricious, and an abuse of discretion by the DOL. The appellants specifically challenged two aspects of the DOL’s rationale. First, they argued that the DOL failed to consider the rule’s impact on the Immigration Reform and Control Act’s (IRCA) main purpose of controlling illegal immigration. They asserted the H2-A program was established to provide farmers with a legal alternative to undocumented labor; however, the rule now undermines this purpose by making H-2A workers too expensive. Second, they claimed that the DOL neglected to properly evaluate the rule’s costs, which renders the rule arbitrary and capricious and justifies an injunction until the district court proceedings conclude.  

1.31.24 – The defendants-appellees filed their response brief arguing the district court correctly denied the plaintiffs’ argument that the rule is arbitrary and capricious and that the DOL failed to consider the costs when establishing the rule. They pointed out that the plaintiffs previously conceded that the DOL did consider costs. Additionally, they argued that any new arguments not raised before the district court should be considered forfeited in this appeal. The appellees asked the court to dismiss the appeal.  

3.15.24 – The defendants filed a motion for summary judgment on all claims, asserting that the plaintiffs’ claims failed as a matter of law. The defendants argued that the final rule aligns with the clear language of the H-2A program statute and reflects “reasoned” decision-making. As a result, the U.S. district court should affirm the DOL’s final rule.  

3.15.24 – The plaintiffs filed a cross-motion for summary judgment, arguing that the DOL’s final rule is invalid. The Immigration Reform and Control Act (IRCA) requires the Attorney General’s approval of H-2A regulations, following consultation with both the Department of Lavor (DOL) and the Department of Agriculture (USDA). The plaintiffs claimed the DOL failed to obtain approval from the Attorney General and did not consult with the USDA as required by law and violated established legal procedures. Additionally, the plaintiffs argued the DOL failed to demonstrate how the rule aligns with the IRCA’s objectives, including controlling illegal immigration and maintaining the competitiveness of American food producers. The plaintiffs contended the DOL focused solely on wage concerns, neglecting potential impacts on illegal immigration, national security, and agricultural stability. Furthermore, the plaintiffs argued the rule lacked a justified basis. They asserted the DOL failed to empirically measure the adverse effects the rule supposedly addresses, adequately compare the benefits and costs of alternative policy options, and estimate the actual costs to farmers, relying instead on arbitrary assumptions

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. The plaintiffs argued that the DOL exceeded its statutory authority, failing to comply with the congressionally mandated rules for the H-2A program set out in 8 U.S.C. § 1188(a)(1)(B). They asserted that the rule was “arbitrary and capricious” and lacked clarity. Additionally, the plaintiffs challenged the methodology used to determine wage rates in the rule, arguing that the department relied on an inappropriate survey not designed for this purpose, in violation of the Administrative Procedure Act (APA). Finally, the plaintiffs argued the rule violated the Regulatory Flexibility Act.

5.11.23 – The plaintiffs filed a motion for a preliminary injunction seeking to prevent the U.S. Department of Labor (DOL) from enforcing the rule. They argued that the rule would harm American farmers while not causing any hardship for the Department of Labor if the injunction were granted. In a supporting memorandum, the plaintiffs challenged the DOL’s methodology for setting wages. They argued that the DOL sets wages based on the highest possible rate rather than on job duties, meaning that farmers would have to pay higher wages even for tasks not performed by the worker. Furthermore, they contended that the DOL’s proposed solution of splitting job orders into multiple categories creates hardship for farmers. This approach would not reflect the reality of farm work where workers often handle different tasks and farms might not have enough workers to fill all the newly created positions under this approach.   

6.27.23 – The defendants filed a motion to dismiss the case, arguing that the plaintiffs failed to show they have Article III standing to maintain the lawsuit and further argued that the rule would not directly affect the plaintiffs. Additionally, the defendants challenged the court’s jurisdiction over the plaintiffs’ Regulatory Flexibility Act (RFA) claim. They argued that the RFA does not authorize judicial review for alleged violations under 5 U.S.C. Section 603. Additionally, they challenged the plaintiffs’ ability to bring an RFA claim, stating that the plaintiffs do not qualify as a small business or organization.  

1.5.24 – The Honorable Christopher P. Tuite, U.S. Magistrate recommended granting the defendant’s motion to dismiss partially. Specifically, the report and recommendation suggested dismissal of the plaintiffs’ Regulatory Flexibility Act (RFA) claim but advised denying the motion in all other aspects. Additionally, the report and recommendation proposed denying the plaintiff’s motion for a preliminary injunction.  

4.26.24 – The defendants filed a motion to dismiss count IV of the amended complaint, which alleges a violation of the Regulatory Flexibility Act (RFA). The defendants argued that the RFA’s section 604, requiring a full regulatory flexibility analysis, does not apply in this case. They pointed out that the DOL already complied with section 605(b) by certifying the rule would have minimal impact on small businesses. Additionally, the defendants argued that the plaintiffs lack standing to sue because they failed to demonstrate that they qualify as small entities. Therefore, the defendants requested dismissal of count IV with prejudice, arguing that the plaintiffs have twice failed to adequately plead a claim under the RFA.  

6.7.24 – The U.S. District Court granted the defendant’s motion to dismiss count IV of the amended complaint.  

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. The DOL implemented a new methodology for setting wages for H-2A non-range temporary agricultural workers. This change resulted in higher wages for these workers. However, the plaintiffs argued that the DOL failed to consider the distinct nature of agricultural labor by basing wages on non-agricultural jobs. They claimed this could have negative consequences for American farms, particularly those heavily reliant on seasonal foreign labor. Furthermore, the plaintiffs argued that this increase in wages may extend beyond pay to also affect the working conditions of both domestic and foreign workers. The plaintiffs sought a court declaration that the rule is invalid and requested a permanent injunction to prevent its enforcement. The complaint states, [t]he purpose of this lawsuit is to protect and preserve the livelihood of agricultural farmers and workers in Louisiana, and in particular those farmers and workers who produce sugar cane and other agricultural commodities.  

7.7.23 – The plaintiffs filed a motion for a preliminary injunction seeking a court order preventing the DOL from enforcing the rule within Louisiana. The plaintiffs argued that the DOL’s application of the new rule disregarded Congressional intent to differentiate between agricultural and non-agricultural labor. More specifically, the plaintiffs asserted that the DOL established a new methodology that sets wages for agricultural workers based on wage rates in other industries, rather than considering the specific demands of farm labor. As a result, a preliminary injunction would help prevent harm to farm operations in Louisiana, especially those involved in sugarcane farming.  

8.25.23 – The defendants filed a partial motion to dismiss five plaintiffs from the case due to lack of standing. They argued that these plaintiffs had not demonstrated specific harm resulting from the DOL’s new H-2A worker wage rule. They also challenged the legal basis of count IV, which claimed the rule violated the Regulatory Flexibility Act (RFA). The defendants argued that it did not have to conduct a full regulatory flexibility analysis under section 604 because it had already certified the rule under section 605 of the RFA.  

9.15.23 – The plaintiffs filed their first amended complaint seeking a declaratory judgment and injunctive relief. The amended complaint added new allegations under the Regulatory Flexibility Act (RFA). The RFA requires agencies to consider their rules’ impact on small entities, unless the head of the agency certifies that the rule will not have a significant economic impact on many small entities. According to the plaintiffs, the DOL’s final rule violated the RFA by failing to obtain the required certification from the Secretary of Labor. They also argued the DOL lacked proper justification for seeking such certification. All other claims from the original complaint are still in effect.  

9.29.23 – The defendants filed a motion to dismiss the new allegations in the amended complaint, arguing that these allegations are based on “incorrect legal conclusions, implausible allegations, and pure speculation.” The defendants highlighted that their previous motion to dismiss portions of the original complaint remains active.