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.

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) 

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.”

9.15.23 – The Department of Labor (DOL) Employment and Training Administration (ETA) and Wage and Hour Division (WHD) published a notice of proposed rulemaking in the Federal Register, titled “Improving Protections for Workers in Temporary Agricultural Employment in the United States.” The agency proposes to (1) clarify workers’ rights to receive and host guests, including labor union representatives, in employer-provided housing; (2) clarify that employers can only terminate workers for specific reasons, including failing to meet pre-specified productivity standards or violating employer policies; (3) require employers to provide the Department of Labor with copies of all contracts they have with agents or recruiters they hire to recruit H-2A workers, no matter where the agent or recruiter is located; (4) require employers to disclose who solicits H-2A workers on their behalf; (5) require employers to provide vehicles with seat belts for all; and (6) require new wage rate to apply immediately, not weeks after. The public comment period ends on November 14, 2023.

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.

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. 

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.