Bryan Little, FELS Chief Operating Officer

December 12, 2022

The U.S. Department of Labor (DOL) in early October released a final re-write of regulations for the H-2A temporary agricultural visa program.  Named for the designation in the Immigration and Nationality Act authorizing it, the H-2A program has seen significant growth in recent years.  After decades of very light usage of the program in California, some projections show California ag employers will employ more than 35,000 H-2A employees in 2023, in spite of a recent DOL Adverse Effect Wage Rate (AEWR) determination pegging California’s wage standard at $18.65 per hour, the highest in the U.S.

Among other changes, the new rule:

• Expands the types of organizations who may conduct “prevailing wage” surveys (the H-2A program minimum wage standard requires employers to pay H-2A employees the highest of the DOL-mandated AEWR, the prevailing wage, or the statutory minimum wage) and reduces the number of data points prevailing wage surveys must include, potentially degrading the statistical validity of surveys and creating opportunities for worker advocates to make selective use of wage data to yield prevailing wages higher than the AEWR;
• Does not expand occupations in which H-2A employees may be employed to include year-round occupations like dairies, a major flaw in the existing program;
• Imposes new minimum per-occupant square footage on rental or public accomodation housing for H-2A workers;
• Requires meals must be provided in a timely and sanitary manner while imposing vague standard for “nutritional adequacy;”
• Imposes stronger joint-liability standards for associations of agricultural employers and their members, particularly where individual association members cannot provide full-time employment for any given worker

You can review the text of the final rule here; recently published Frequently-asked Questions offered by the DOL Office of Foreign Labor Certification can be found here.

The Wage and Hour Division (WHD) is also posting guidance and information regarding H-2A program obligations, requirements, and compliance under the 2022 H-2A Final Rule here.