Adverse Effect Wage Rate Methodology for the Temporary Employment of H-2A Nonimmigrants in Non-Range Occupations in the United States

The Immigration and Nationality Act (INA), as amended by the Immigration Reform and Control Act of 1986 (IRCA), establishes an “H- 2A” nonimmigrant visa classification for a worker “having a residence in a foreign country which he has no intention of abandoning who is coming temporarily to the United States to perform agricultural labor or services . . . of a temporary or seasonal nature.” 8 U.S.C. 1101(a)(15)(H)(ii)(a); see also 8 U.S.C. 1184(c)(1) and 1188.\1\ The term “[a]gricultural labor or services” includes the types of labor and services “defined by the Secretary of Labor in regulations,” as well as the Internal Revenue Code definition of “agricultural labor” at “section 3121(g) of title 26,” the Fair Labor Standards Act definition of “agriculture” at “section 203(f) of title 29,” and “the pressing of apples for cider on a farm . . . .” 8 U.S.C. 1101(a)(15)(H)(ii)(a).

\1\ For ease of reference, sections of the INA are referred to by their corresponding section in the United States Code.

The admission of foreign workers under this classification involves a multistep process before several Federal agencies. A prospective H-2A employer must first apply to the Secretary of Labor (Secretary) for a certification that:

(A) there are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services involved in the petition, and

(B) the employment of the alien in such labor or services will not adversely affect the wages and working conditions of workers in the United States similarly employed.

8 U.S.C. 1188(a)(1).

The INA prohibits the Secretary from issuing this certification-- known as a “temporary labor certification”--unless both of the above referenced conditions are met, and none of the conditions in 8 U.S.C. 1188(b) applies concerning strikes or lock-outs, labor certification program debarments, workers' compensation assurances, and positive recruitment.

The Secretary has delegated the authority to issue temporary agricultural labor certifications to the Assistant Secretary for Employment and Training, who in turn has delegated that authority to ETA's Office of Foreign Labor Certification (OFLC).\2\ In addition, the Secretary has delegated to the Department's Wage and Hour Division (WHD) the responsibility under sec. 218(g)(2) of the INA, 8 U.S.C. 1188(g)(2), to assure employer compliance with the terms and conditions of employment under the H-2A program.\3\ Since 1987, the Department has operated the H-2A temporary agricultural labor certification program under regulations promulgated pursuant to the INA. The standards and procedures applicable to the certification and employment of workers under the H-2A program are found at 20 CFR part 655, subpart B, and 29 CFR part 501.

\2\ See Secretary's Order 06-2010 (Oct. 20, 2010), 75 FR 66268 (Oct. 27, 2010).

\3\ See Secretary's Order 01-2014 (Dec. 19, 2014), 79 FR 77527 (Dec. 24, 2014).

When creating the H-2A visa classification, Congress charged the Department with, among other things, regulating the employment of nonimmigrant foreign workers in agriculture to guard against adverse impact on the wages of agricultural workers in the United States similarly employed. See 8 U.S.C. 1188(a)(1)(B). Congress, however, did not “define adverse effect and left it in the Department's discretion how to ensure that the [employment] of farmworkers met the statutory requirements” while serving “the interests of both farmworkers and growers--which are often in tension.” \4\ Thus, the Department has discretion to determine the methodological approach that best allows it to meet its statutory mandate.\5\

\4\ AFL-CIO, et al. v. Dole, 923 F.2d 182, 184, 187 (D.C. Cir. 1991). See also Overdevest Nurseries v. Walsh, 2 F.4th 977, 984 (D.C. Cir. 2021) (finding reasonable the Department's definition of “corresponding employment” to prevent adverse effect on workers similarly employed).

\5\ United Farmworkers v. Solis, 697 F. Supp. 2d 5, 8-11 (D.D.C. 2010).

Since the Supreme Court's decision in Loper-Bright Enterprises, et al. v. Raimondo, 603 U.S. 369 (2024), courts have consistently found that the Department has discretion to determine the methods it uses to carry out its mandate to prevent adverse effect. In Kansas, et al. v. U.S. Department of Labor the district court noted the INA “affords the DOL considerable latitude to promulgate regulations that protect American workers from being adversely affected by the issuance of H-2A visas” and that the Department's “choice of [AEWR] methodology is really a policy decision taken within the bounds of a rather broad delegation.” \6\ The court in

Teche Vermillion v. Sugar Cane Growers Ass'n Inc. v. Su similarly held that the INA “grants discretion to the DOL to implement a regulatory regime to address” adverse effect, does not “define the term `similarly employed,' ” and “does not direct the DOL how to determine whether the employment of an H-2A worker will `adversely affect' the wages and working conditions of domestic workers” similarly employed.\7\ Thus in Teche the court found that the INA “does not dictate the methodology that the DOL must use to determine the AEWR or otherwise limit the DOL to using a particular survey, such as the FLS,” and that “[t]he only statutory constraints are the boundaries set by section 1188(a)(1)(B).” \8\ While reiterating the Department's obligation to “balance the competing goals of the statute--providing an adequate labor supply and protecting the jobs of domestic workers,” the “choice of [AEWR] methodology . . .” to achieve those twin aims “is really a policy decision taken within the bounds of a rather broad congressional delegation” provided to the Department.\9\

\6\ 749 F. Supp. 3d 1363, 1374-75 (S.D. Ga. 2024) (quoting Dole at 187).

\7\ Teche Vermilion Sugar Cane Growers Ass'n Inc. v. Su, 749 F. Supp. 3d 697, 723 (W.D. La. 2024), opinion clarified, No. 6:23-CV- 831, 2024 WL 4729319 (W.D. La. Nov. 7, 2024), and amended, No. 6:23- CV-831, 2025 WL 1969937 (W.D. La. July 16, 2025).

\8\ Id. at 33.

\9\ Kansas, et al. v. U.S. Dep't of Labor, 749 F.Supp.3d 1363, 1374 (S.D. Ga., Aug. 26, 2024), citing AFL-CIO v. Dole, 923 F.2d 182, 187 (D.C. Cir. 1991).

As explained in prior rulemakings, a “basic Congressional premise for temporary foreign worker programs . . . is that the unregulated use of [nonimmigrant foreign workers] in agriculture would have an adverse impact on the wages of U.S. workers, absent protection.” \10\ The AEWR is one of the primary ways the Department has historically met its statutory obligation to certify that the employment of H-2A workers will not have an adverse effect on the wages of agricultural workers in the United States similarly employed, while ensuring that employers can access legal agricultural labor. The AEWR is a regulatory mechanism to prevent--not compensate for--adverse effects. The AEWR is not backward- looking or remedial, meaning it is not “predicated on the existence of wage depression in the agricultural sector and [DOL] is not statutorily required to identify existing wage suppression prior to establishing and requiring employers to pay an AEWR.” \11\

\10\ 85 FR 70445, 70449 (Nov. 5, 2020) (citation omitted).

\11\ 85 FR at 70450; see also, e.g., 75 FR 6884, 6895 (Feb. 12, 2010) (reiterating justification for protection against future adverse effect in 1989 rule); id. at 6891 (“By computing an AEWR to approximate the equilibrium wages that would result absent an influx of temporary foreign workers, the AEWR serves to put incumbent farm workers in the position they would have been in but for the H-2A program. In this sense, the AEWR avoids adverse effects . . .”); 73 FR 77110, 77167 (Dec. 18, 2008) (noting the D.C. Circuit observed there is no “statutory requirement to adjust for past wage depression”); 54 FR at 28046-47 (Jul. 5, 1989) (“IRCA only requires that the AEWR prevent future adverse effect from the use of foreign workers, not compensate for past effect.”)

Further, the INA does not require the Department to prove or rely on the existence of past adverse effect but instead is focused on prevent[ing] future adverse effect.\12\ Regardless “of any past adverse effect that the use of low-skilled foreign labor may or may not have had on” wages, the AEWR is necessary to satisfy the Department's “forward-looking need to protect U.S. workers whose low skills make them particularly vulnerable to even relatively mild--and thus very difficult to capture empirically--wage stagnation or deflation.” \13\ As the Department has noted in prior rulemaking, there is no “reliable method available” to determine the existence of adverse effect in a particular area and occupation or agricultural activity and the absence of such a finding would not mean there has been no adverse effect, but merely that “imposition of the AEWR heretofore has been successful in shielding domestic farm workers from the potentially wage depressing effects of overly large numbers of temporary foreign workers” into a particular area.\14\

\12\ See, e.g., 54 FR at 28046-47; 75 FR at 6895 (reiterating justification for protection against future adverse effect in 1989 rule); 73 FR at 77167 (Dec. 18, 2008) (noting the D.C. Circuit observed there is no “statutory requirement to adjust for past wage depression”).

\13\ 85 FR at 70450-70451.

\14\ Id. at 70451, citing 54 FR 28037, 28045 (July 5, 1989).

In administering the H-2A program and carrying out the statutory mandate to prevent adverse effect, the INA does not require the Department to “determine the AEWR at the highest conceivable point, nor at the lowest, so long as it serves its purpose to guard against adverse impact on the wages of agricultural workers in the United States similarly employed.” \15\ Rather, the “ `clear congressional intent was to make the H-2A program usable, not to make U.S. producers non-competitive' ”. “ `Unreasonably high AEWRs could endanger the total U.S. domestic agribusiness, because the international competitive position of U.S. agriculture is quite fragile.' ” \16\ The Department must also consider factors relating to the sound and effective administration of the H-2A program in deciding how to determine the most reasonable methodology for establishing the AEWR to effectuate its statutory mandate.\17\

\15\ 88 FR 12760, 12761 (Feb. 28, 2023); see also 52 FR 11460, 11464 (Apr. 9, 1987) (“[T]he labor certification program is not the appropriate means to escalate agricultural earnings above the adverse effect level or to set an `attractive wage.' ”); Nat'l Shooting Sports Found., Inc. v. Jones, 716 F.3d 200, 214-15 (D.C. Cir. 2013) (noting that “an agency has `wide discretion' in making line-drawing decisions and `[t]he relevant question is whether the agency's numbers are within a zone of reasonableness, not whether its numbers are precisely right.' ”) (quoting WorldCom, Inc. v. FCC, 238 F.3d 449, 462 (D.C. Cir. 2001).

\16\ Id. at 12772 (quoting 54 FR 28037, 28046 (Jul. 5, 1989)).

\17\ 85 FR at 70450.

Concerns about the potential adverse impact resulting from a large influx of temporary foreign workers, and development of methods to determine and establish AEWRs to prevent it, date back to the establishment of the Bracero Program and were at one point reflected in international agreements that pre-date the 1986 IRCA.\18\ Since at least 1953, “employers seeking to import foreign nationals to work in various crop activities (in that case, under the Bracero program) were required to pay not less than a wage established by DOL.” \19\ The AEWR as a formal concept in the H-2 program was introduced in 1963, at which point the AEWR initially was based on the Census of Agriculture's average earnings for each state, which was conducted by the U.S. Census Bureau and provided data for 11 East Coast H-2 user states and was expanded and periodically adjusted thereafter.\20\ As time passed, the establishment of AEWRs became more formalized, and AEWRs were computed and set for the entire H-2 program, with corresponding public notice and comment. See, e.g., 29 FR 19101-19102

(Dec. 30, 1964); 32 FR 4569, 4571 (Mar. 28, 1967); and 35 FR 12394- 12395 (Aug. 4, 1970).

\18\ See 54 FR at 28039. The first Bracero Program allowed farmers in the western United States to employ temporary foreign workers from Mexico to work on farms and railroads beginning in May 1917. Under these agreements, employers were required to obtain a certification from their local Employment Service office that there were not sufficient U.S. workers to fill the jobs they offered, and the contracts with Mexican workers had to offer the same wages that were paid “for similar labor in the community in which the admitted aliens are to be employed.” See Emergency Immigration Legislation: Hearing before Committee on Immigration, United States Senate, 66th Congress, Third Session, on H.R. 14461, 66 Cong. 3 (1921) (citing Departmental Order of April 12, 1918, Concerning Admission of Agricultural Laborers. U.S. Department of Labor, Bureau of Immigration, Washington, April 12, 1918).

\19\ 54 FR at 28039.

\20\ Id. at 28040.

Since 1987, following the IRCA amendments of 1986, the Department has operated the H-2A program under regulations promulgated pursuant to the INA and has, with brief interruption, set the AEWR for most agricultural workers at the average wage paid to similarly employed workers in a state or region, as determined by the USDA Farm Labor Survey (FLS). For more than two decades after IRCA, the Department's 1989 Final Rule governed the H-2A program.\21\ The 1989 Final Rule “dramatically expanded the use of the AEWR as a wage protection in the H-2A program in 49 States (excluding Alaska) and first began using the FLS to set the AEWR” as the average wage of farmworkers, which is the method still in use for most H-2A job opportunities.\22\ This methodology was selected after a thorough consideration of alternatives and litigation directing the Department to provide a reasoned explanation for the chosen AEWR methodology.\23\ The Department noted that the use of the FLS to set statewide AEWRs based on actual earnings of similarly employed workers was preferable to the prior method of basing AEWRs on the 1950s Census of Agriculture “that had been adjusted upward by various methods over the years.” \24\

\21\ See id. at 28037.

\22\ 84 FR 36168, 36186 (Jun. 26, 2019).

\23\ See 54 FR at 28038 (discussing the Department's 1987 IFR methodology and related litigation and subsequent rounds of rulemaking to determine a reasoned AEWR methodology); See also 52 FR 20496 (Jun. 1, 1987) (1987 H-2A IFR); AFL-CIO v. Brock, 835 F.2d 912, 915 (D.C. Cir. 1987).

\24\ Id. at 28039.

For a brief period, under a 2008 final rule (73 FR 77110), the Department determined the AEWR to be based on the OEWS survey. The Department explained that under that rule, the AEWR was set “using the [SOC] taxonomy” to “set a different AEWR for each SOC [occupation] and localized area of intended employment.” \25\ The Department also set the wage for each job opportunity at one of multiple wage levels “intended to reflect education and training,” similar to the Congressionally-mandated prevailing wage methodology in the H-1B program.\26\ The Department suspended this rule in 2009 citing administrative challenges and concerns that U.S. workers may in the future experience wage depression as a result of unchecked expansion of the demand for foreign workers.\27\ Under the 2010 final rule (75 FR 6884), which has governed the program for more than a decade at various intervals, the Department returned to use of the FLS hourly wage data to determine the AEWR for field and livestock workers (combined), and produced “a single AEWR for all agricultural workers in a State or region, without regard to SOC code, and no AEWR in geographic areas not surveyed” (e.g., Alaska and Puerto Rico).\28\

\25\ 84 FR at 36180.

\26\ Id.

\27\ 74 FR 45906 (Sep. 4, 2009).

\28\ 88 FR at 12793-12794.

In response to public comments on previous proposed rules related to the methodology for determining the AEWRs, the Department considered and rejected several alternative methodologies, including: adding an enhancement to the USDA average wage; \29\ tying the AEWR to an index like the Consumer Price Index or Employment Cost Index; \30\ using various methods of setting AEWRs based on a uniform minimum wage untethered to labor market data, such as an enhanced federal minimum wage; \31\ eliminating AEWRs and instead using only prevailing wages based on specific crop activities; \32\ setting a cap or ceiling on the AEWR employers must pay; \33\ and using the highest AEWR among those reported by the FLS and OEWS at the local, state, and national levels,\34\ among other suggested alternative methods.

\29\ See, e.g., 54 FR at 28045, 28046-47, 28051 (rejecting use of an enhanced wage methodology for foreign workers because, absent data indicating a need to correct wage suppression, it could be inflationary and beyond the Department's authority.).

\30\ See, e.g., 85 FR at 70455 (rejecting use of the CPI because it measured changes in consumer prices, not changes in wages); 88 FR at 12773 (rejecting use of the ECI “or other broad indices” because they would provide only “a general measure of changes in the cost of labor across the private sector,” rather than “actual wage data for agricultural workers in particular geographic areas.”).

\31\ See, e.g., 88 FR at 12773 (rejecting use of a minimum wage or an enhanced minimum wage because these “predetermined wages would be untethered from data on wages employers pay to” similarly employed workers and the method would “immediately and dramatically reduce the wages of many H-2A and similarly employed workers . . .); 73 FR 77110, 77172 (Dec. 18, 2008) (rejecting a national uniform wage because it would “not reflect market wages” and “would prove to be below market rates in some areas and above market rates in other areas.”).

\32\ See, e.g., 54 FR at 28045, 28047 (rejecting use only of a crop-specific minimum wage and stating an average AEWR wage is necessary to address “pockets of past adverse effect” that are difficult to measure but may persist); 88 FR at 12768 (Feb. 28, 2023) (rejecting similar methods for similar reasons, and noting the AEWR functions as “a prevailing wage defined over a broader geographic area and over a broader occupational span”); See also 87 FR 61660, 61687, 61701 (Oct. 12, 2022) (explaining prevailing wage rates are not available for all crop activities and locations in every year and the Department will not issue a specific prevailing wage determination where a compliant state-issued survey prevailing wage is unavailable).

\33\ See, e.g., 88 FR at 12773 (noting capped AEWRs would not reflect actual wage changes and “imposition of such a cap would produce wage stagnation” especially “in years when the wages of agricultural workers are rising faster . . .”).

\34\ See, e.g., 88 FR at 12773-12774 (rejecting this method because it would increase regulatory complexity and unpredictability and would arbitrarily impose a wage that is highest among multiple data sources when the Department's preferred sources are available, without noting flaws in the methodology of the preferred sources or explaining how other sources would produce a more accurate wage, which may result in employers paying an “enhanced wage untethered to the best available information . . .” and “place unnecessary upward pressure on wages . . .”).

As part of a comprehensive NPRM published in 2019, the Department proposed to establish occupation-specific statewide hourly AEWRs for non-range occupations (i.e., all occupations other than herding and production of livestock on the range) using data reported by FLS for the SOC code in the State or region, if available, or data reported by the OES (now OEWS) survey for the SOC code in the State, if FLS data in the State or region was not available.\35\ The Department explained that establishing AEWRs based on data more specific to the agricultural services or labor being performed under the SOC system would better protect against adverse effect on the wages of agricultural workers in the United States similarly employed. The Department expressed concern that the AEWR methodology under the 2010 Final Rule could have an adverse effect on the wages of workers in higher paid agricultural SOC codes, such as supervisors of farmworkers and construction laborers, whose wages may be inappropriately lowered by use of a single hourly AEWR based on the wage data collected for the six SOC codes covering field and livestock workers (combined) when the essence of the employer's job opportunity is equivalent to and should be treated like other jobs in the higher paid occupations outside of the field and livestock workers (combined) category.\36\

\35\ See 84 FR at 36171 (Jul. 26, 2019).

\36\ See 84 FR at 36180-36185.

On September 30, 2020, USDA announced its intent to discontinue the FLS and that it would not publish the FLS in November 2020. Litigation challenging USDA's cancellation of the FLS data collection and November annual report publication followed and,

on October 28, 2020, in United Farm Workers, et al. v. Perdue, et al., No. 20-cv-01452 (E.D. Cal. filed Oct. 13, 2020), the court preliminarily enjoined USDA from giving effect to its decision to cancel the October 2020 FLS data collection and cancel its November 2020 publication of the FLS.\37\ In light of USDA's action and subsequent litigation over the announcement, the Department determined it was necessary to bifurcate the 2019 H-2A NPRM's proposals and published an AEWR final rule on November 5, 2020 (2020 AEWR Final Rule), to establish a new hourly AEWR methodology with an effective date of December 21, 2020.\38\

\37\ United Farm Workers, et al. v. U.S. Dep't. of Labor, et al., 598 F.Supp.3d 878, 888 (E.D. Cal. Apr. 1, 2022); see also United Farm Workers, et al. v. U.S. Dep't of Labor, et al., 509 F.Supp.3d 1225, 1255 (E.D. Cal. Dec. 23, 2020) (enjoining the Department from implementing the November 2020 Final Rule).

\38\ Final Rule, Adverse Effect Wage Rate Methodology for the Temporary Employment of H-2A Nonimmigrants in Non-Range Occupations in the United States, 85 FR 70445, 70447-70465 (Nov. 5, 2020).

Under the 2020 AEWR Final Rule, the Department used the 2019 USDA FLS wage report as the baseline for establishing the 2021 AEWRs for all field and livestock workers (combined) occupations in all states with annual wage data except Alaska, which constituted more than 95 percent of H-2A job opportunities. After a two-year “freeze,” these AEWRs would then be adjusted annually based on the 12-month percent change in the BLS Employment Cost Index (ECI) beginning in 2023; an index the Department continues to use to adjust the monthly AEWR for job opportunities in the herding or production of livestock on the range. For all other occupations and geographic areas not covered in the FLS report (i.e., Alaska and U.S. territories), the 2020 AEWR Final Rule set AEWRs using the statewide average hourly gross wage for the occupation, as reported by the BLS OEWS survey at the state or national level. If the job opportunity is classified in more than one SOC system code, the AEWR will be the highest rate among the applicable occupational codes.

The Department's 2020 AEWR Final Rule was challenged in United Farm Workers, et al. v. Dep't of Labor, et al., No. 20-cv-01690 (E.D. Cal. filed Nov. 30, 2020). The 2020 AEWR Final Rule was enjoined and subsequently vacated and remanded to the Department for further rulemaking consistent with the court's opinion.\39\ As a result of this litigation, the Department reverted back to the methodology used in the 2010 H-2A Final Rule and continued to do so until February 28, 2023, when the Department published the 2023 AEWR Final Rule (2023 AEWR Final Rule).\40\

\39\ Id.

\40\ 88 FR 12760.

Under the 2023 AEWR Final Rule, the Department established the AEWRs based on the annual average hourly gross wage in the State or region reported from the USDA FLS or the BLS OEWS survey. The Department adjusted the AEWRs for each State or region at least once in each calendar year. The OFLC Administrator published an announcement in the Federal Register to update the AEWRs based on the FLS, effective on or about January 1, and a separate announcement in the Federal Register to update the AEWRs based on the OEWS survey, effective on or about July 1.

The Department determined the AEWR for the six most common occupations--those within the FLS field and livestock workers (combined) category \41\--using, as its primary wage source, the annual average gross hourly wage reported by the FLS for the State or region. Hourly wage rates were calculated based on employers' reports of total wages paid and total hours worked for all hired workers during a particular survey reference week each quarter. In the event the FLS could not report the annual average hourly gross wage for the field and livestock workers (combined) category in a particular geographic area (e.g., in Alaska, which is not covered in FLS data) or in the unanticipated circumstance that the FLS survey became unavailable (e.g., suspension of the survey), the Department would use, as its secondary source, the OEWS to determine a statewide AEWR for the field and livestock workers (combined) category. In circumstances where neither the FLS nor the OEWS survey reports a statewide annual average hourly gross wage for the field and livestock workers (combined) category in a particular State, or equivalent district or territory, the Department used the OEWS survey's national annual average hourly gross wage for the field and livestock workers (combined) category to determine the AEWR in that State.

\41\ This currently includes the following `big six' SOC occupational titles and codes: Farmworkers and Laborers, Crop, Nursery and Greenhouse (45-2092); Farmworkers, Farm, Ranch, and Aquacultural Animals (45-2093); Agricultural Equipment Operators (45-2091); Packers and Packagers, Hand (53-7064); Graders and Sorters, Agricultural Products (45-2041); and Agricultural Workers, All Other (45-2099).

For H-2A job opportunities that do not fall within the FLS field and livestock workers (combined) category, the Department used only the OEWS survey to determine SOC-specific AEWRs. Under this methodology, the AEWR for all non-range SOC codes outside the field and livestock workers (combined) category were computed as the statewide annual average hourly gross wage for the SOC code, as reported by the OEWS survey. If the OEWS survey did not report a statewide annual average hourly gross wage for the SOC code, the AEWR for that State was determined as the national annual average hourly gross wage for the SOC code, as reported by the OEWS survey.

The 2023 AEWR Final Rule also required employers to pay the highest of all applicable AEWRs for job opportunities involving a combination of duties within multiple occupations, regardless of the amount of time a worker may spend performing such duties. Although the vast majority of H-2A job opportunities fall within the FLS field and livestock workers (combined) category and are subject to the single statewide AEWR determination, some H-2A job opportunities include duties that fall both within and outside of that category. In these circumstances and no matter how often a particular duty or work task is performed, the Department determined the AEWR based on the highest of the applicable FLS and OEWS rates that employers were required to advertise, offer, and pay for the entire work contract period.

Since its implementation on March 30, 2023, the Department has litigated substantive issues raised in lawsuits across several district courts challenging the methodology contained in the 2023 AEWR Final Rule. Generally, plaintiffs in these litigation matters claim that the methodology contained in the 2023 AEWR Final Rule exceeds the Department's statutory authority and is arbitrary and capricious. In USA Farm Labor, Inc., et al. v. Su, et al., No. 1:23-cv-00096 (W.D. N.C. filed June 28, 2023), the plaintiffs include a group of 23 mostly small farms and agricultural businesses and one H-2A filing agent asserting that the Department violated the Administrative Procedure Act (APA) and that the 2023 AEWR Final Rule was arbitrary and capricious for the following reasons: (1) the Department exceeded its statutory authority in treating agricultural positions as being “similar” to nonagricultural positions for purposes of determining the AEWRs; (2) the Department failed to consider what a worker's primary job duties are in determining the AEWR in favor of a combination of duties rule where even minor or intermittent job duties would shift the determination from an FLS-based AEWR to an OEWS-based AEWR;

and (3) the Department failed to consider the effect its chosen AEWR methodology will have on food prices and rule's effect on illegal immigration. Although plaintiffs' motion for a preliminary injunction was denied by the district court, the lawsuit remains an active appeal in the Fourth Circuit.

In Florida Growers Association, Inc. et al. (FGA),\42\ the plaintiffs included a group of small farms, one national association, and several Florida grower associations. In their complaint, plaintiffs asserted that the Department violated the APA and that the 2023 AEWR Final Rule was arbitrary and capricious for the following reasons: (1) the Department impermissibly used OEWS-based AEWRs for jobs involving a “mix of duties” falling both inside and outside of the FLS combined field and livestock workers category for the purpose of attracting U.S. workers to these job opportunities, rather than to prevent an adverse effect on the pay of similarly employed U.S. workers; (2) the Department should have confined its use of OEWS data by examining the primary or main duties of the work to be performed or, alternatively, applying the applicable wage to the specific work considered to be similar employment, rather than the highest applicable AEWR to all workers at all times under the contract; and (3) the USDA FLS data is flawed in that it includes total compensation paid by a farm, including overtime, Christmas or birthday bonuses, and piece-rate payments, rather than straight hourly rates, does not include farm labor contractors, and fails to consider non-wage expenses of H-2A employers that the Department requires them to provide, including but not limited to, international and local transportation and employer-provided housing. Based on testimony provided by expert economists, the plaintiffs further asserted that the FLS-based data provides an accurate count of the number of persons employed in agriculture and the average wage rate across all skill levels and occupations, but fails to provide an appropriate entry-level or starting wage for H-2A employment.\43\ After the court denied plaintiffs' motion for preliminary injunction, the case was briefed for summary judgment but later stayed pursuant to the Department's motion.\44\

\42\ Florida Growers Ass'n, Inc., et al. v. Su, No. 8:23-cv- 00889-CEH-CPT (M.D. Fla. 2024).

\43\ Complaint, Florida Growers Ass'n, Inc., et al. v. Su, No. 8:23-cv-00889-CEH-CPT (M.D. Fla. Apr. 21, 2023), ECF No. 1.

\44\ Id. at ECF No. 105.

In Teche Vermilion Sugar Cane Growers Assoc. Inc., (Teche Vermilion),\45\ the plaintiffs included two agricultural associations, a trade association, three farming businesses, and an individual owner and operator of two farms seeking preliminary and permanent injunctive relief against the rule's application and enforcement. In their complaint, the plaintiffs asserted that the Department exceeded its statutory authority and the 2023 AEWR Final Rule is arbitrary and capricious under the APA because the rule: (1) required employers to pay some H-2A workers' wages based on allegedly higher rates for “non- farm” U.S. workers not similarly employed; (2) failed to adequately address the rule's economic impact on small business, or consider other alternatives, under the Regulatory Flexibility Act (RFA); and (3) violated the Congressional Review Act mandate that the Department submit a rule exceeding an alleged $100 million in economic impact to Congress at least 60 days prior to its effective date. On September 18, 2024, the district court issued a preliminary injunction enjoining the Department from applying the 2023 AEWR Final Rule to the named plaintiffs and members of the association plaintiffs with respect to the hiring of H-2A workers who grow, harvest, and process sugar cane in Louisiana. In its ruling, the court stated that it cannot conclude that the Department's “use of non-farm wage surveys, such as the OEWS, to supplement data from the FLS in setting the AEWR for H-2A workers exceeds the DOL's statutory authority as long as its methodology is based on workers who are `similarly employed.' ” \46\ However, the Court further noted that the Department failed to consider or adequately explain the basis for assigning the AEWR for non-farm heavy and tractor-trailer truck drivers to H-2A workers engaged in driving sugarcane trucks, including failing to assess any “differences in the `work performed, skills, education, training, and credentials' of these two groups of workers.” \47\ On August 21, 2025, plaintiffs in Teche Vermilion filed a Motion for Entry of Final Judgment requesting that the court convert its preliminary injunction into a final judgment and to accordingly vacate the 2023 AEWR Final Rule.\48\ On August 25, 2025, the Western District of Louisiana granted plaintiffs' unopposed Motion for Entry of Final Judgment and ordered the 2023 AEWR Final Rule vacated.\49\ As a result of the 2023 AEWR Final Rule being vacated, the Department currently establishes a single AEWR for each state and covering all H-2A job opportunities, except Alaska and the U.S. territories, using the 2010 final rule methodology that is based solely on the FLS hourly wage data for field and livestock workers (combined). On August 28, 2025, the Department published a notice on the OFLC website announcing the court's vacatur and stating that the AEWRs for all H-2A job opportunities will be set according to the methodology set forth in the 2010 final rule.

\45\ Teche Vermilion Sugar Cane Growers Ass'n Inc. v. Su, No. 6:23-CV-831 (W.D. La. 2023).

\46\ Teche Vermilion Sugar Cane Growers Ass'n Inc. v. Su, 749 F. Supp. 3d 697 (W.D. La. 2024), opinion clarified, No. 6:23-CV-831, 2024 WL 4729319 (W.D. La. Nov. 7, 2024), and amended, No. 6:23-CV- 831, 2025 WL 1969937 (W.D. La. July 16, 2025).

\47\ Id. at 730-731.

\48\ Motion For Entry of Final Judgment, Teche Vermilion Sugar Cane Growers Ass'n Inc. v. Su, No. 6:23-cv-00831-RRS-CBW (W.D. La. Aug. 21, 2025), ECF No. 86.

\49\ Judgment, Teche Vermilion Sugar Cane Growers Ass'n Inc. v. Su, No. 6:23-cv-00831-RRS-CBW (W.D. La. Aug. 21, 2025), ECF No. 87.

A. The Good Cause Exception Under the APA, and the Two Separate and Independent Bases for the Department's Invocation of the Good Cause Exception

The Administrative Procedure Act (APA) provides an exception to ordinary notice-and-comment procedures “when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.” 5 U.S.C. 553(b)(B). See also 5 U.S.C. 553(d)(3) (creating an exception to the requirement of a 30-day delay before the effective date of a rule “for good cause found and published with the rule”). Generally, the good cause exception for forgoing notice and comment rulemaking “excuses notice and comment in emergency situations, or where delay could result in serious harm.” \50\ While emergency situations are the most common circumstances in which the good cause exception is invoked, the infliction of real harm that would result from delayed action even absent an emergency can be sufficient grounds to issue a rule without undergoing prior notice and comment.\51\

And, as the D.C. Circuit noted, economic harm may be a basis on which the good cause exception may be invoked.\52\

\50\ Jifry v. FAA, 370 F.3d 1174, 1179 (D.C. Cir. 2004); see also U.S. Corp. v. U.S. E.P.A., 595 F.2d 207, 214 (5th Cir. 1979) (“It is an important safety valve to be used where delay would do real harm.”).

\51\ Nat. Res. Def. Council, Inc. v. Evans, 316 F.3d 904, 911 (9th Cir. 2003) (“[W]e have observed that notice and comment procedures should be waived only when `delay would do real harm.' . . . `Emergencies, though not the only situations constituting good cause, are the most common.' ”) (citations omitted); see also Buschmann v. Schweiker, 676 F.2d 352, 357 (9th Cir. 1982) (“The notice and comment procedures in Section 553 should be waived only when `delay would do real harm' . . . The good cause exception is essentially an emergency procedure.”) (citations omitted).

\52\ Sorenson Commc'ns v. F.C.C., 755 F.3d 702, 707 (D.C. Cir. 2014).

First, the Department has good cause to forgo the APA's notice-and- comment procedures and delayed effective date requirements under the “public interest” prong. Under the “public interest” prong of the good cause exception, “the question is not whether dispensing with notice and comment would be contrary to the public interest, but whether providing notice and comment would be contrary to the public interest.” \53\ This prong applies here because, as is explained in detail hereinafter, at Section II.B, the lack of a reasonable and viable AEWR methodology, when combined with the current and imminent labor shortage exacerbated by the near total cessation of the inflow of illegal aliens, increased enforcement of existing immigration law, and global competitiveness pressures described below, presents a sufficient risk of supply shock-induced food shortages to justify immediate implementation of this IFR (with a subsequent “final” final rule to follow the comment period).

\53\ Mack Trucks, Inc. v. EPA, 682 F.3d 87, 95 (D.C. Cir. 2012).

There is ample data showing immediate dangers to the American food supply. The methodology for calculating AEWRs in the vacated 2023 AEWR Final Rule and even under current 2010 final rule, both of which used a single average gross hourly wage for the vast majority of H-2A jobs without regard to the qualifications of the employer's job offer or how much time a worker spends performing specific duties during a work contract period poses an imminent risk to the supply of agricultural labor by setting unreasonably high price floors on labor. This IFR addresses and solves this imminent threat by implementing an AEWR methodology that results in more precise market-based price floors that still serves its statutory function of protecting American workers, but also, ensures that American supermarkets and U.S. consumers will have access to safe, affordable and American-grown produce.

These types of risks to the American food supply have supported good cause in the past and support them now.\54\ As explained in detail below, any delay in implementing this revised AEWR policy would cause or exacerbate imminent and significant economic harm to employers in the U.S. agricultural sector, to authorized U.S. workers performing agricultural labor, and to U.S. consumers of domestic agricultural crops and commodities. Employers in the U.S. agricultural sector are facing a structural, not cyclical, workforce crisis driven by both the lack of an available legal workforce that is relatively mobile and able to adjust to changes in labor demands as well as an ever hastening loss of the mobile illegal alien workforce that had flowed in and out of the United States through a previously porous border.\55\ Nationwide illegal crossings are now at a rate 93% lower than the peak level reached during the prior four years, a rate that has held steady since June of 2025. As discussed below and based on the Department's most recent NAWS data on U.S. crop workers, much of this illegal inflow artificially boosted the supply of labor at relatively lower costs compared to the labor costs associated with a legal workforce. The near total cessation of the inflow of illegal aliens combined with the lack of an available legal workforce, results in significant disruptions to production costs and threatening the stability of domestic food production and prices for U.S consumers. Unless the Department acts immediately to provide a source of stable and lawful labor, this threat will grow as the tools Congress provided in H.R. 1, One Big Beautiful Bill Act, to enhance enforcement of the nation's immigration laws are deployed.

\54\ See e.g., Friendship Dairies, Inc. v. Butz, 432 F. Supp. 508, 513 (E.D.N.Y.), aff'd, 573 F.2d 1290 (2d Cir. 1977) (finding that 10% increase in price of milk, among other things, was sufficient to support good cause because it evinced “substantial evidence of the serious problems confronting producers in the Order No. 2 area and of the potential for disruption of normal marketing channels . . . If the trend were allowed to continue, shortages of milk would have been the likely result”); see also Am. Fed'n of Gov't Emp., AFL-CIO v. Block, 655 F.2d 1153, 1157 (D.C. Cir. 1981) (approving good cause rescission of regulation requiring inspection of poultry because they would “ameliorate” “poultry shortages or increases in consumer prices”).

\55\ See CPB, National Media Release: Trump Administration delivers 4 straight months of 0 releases at the border, nationwide crossings remain 93% lower than the peak under Biden Administration, https://www.cbp.gov/newsroom/national-media-release/trump-administration-delivers-4-straight-months-0-releases-border [INSERT PERMA LINK] (last visited September 20, 2025).

Second, as explained in Section II.C below, the Department has good cause under the “impracticability” prong to forgo the APA's notice- and-comment procedures and delayed effective date requirements due to USDA's decision to discontinue certain statistical surveys including the FLS, that was submitted to OIRA on August 11, 2025, and subsequently approved on August 12, 2025.\56\ This discontinuation went into effect August 31, 2025, and created a regulatory gap for establishing the AEWRs under the H-2A program that this IFR will immediately fill. Under the 2010 H-2A Final Rule methodology that is currently in effect due to the court's vacatur of the 2023 AEWR Final Rule in Teche Vermilion, the Department relies on the annual results of the FLS published by USDA in November to establish the annual AEWRs on or before December 31 each year. USDA's August action to discontinue the FLS means the data collection for the October quarter, which captures employment and wage information for the July and October 2025 quarters, was canceled, as well as release of the annual report planned for the November 2025 cycle. Although the methodology to establish the AEWRs under this IFR is untethered from the continued use of annual FLS wage data, the Department notes that any delay implementing this IFR, in light of USDA's recent decision, will prevent the Department from complying with the regulatory requirement to establish new annual AEWRs.

\56\ The USDA later published notice of the discontinuation in the Federal Register on September 3, 2025, at 90 FR 42560.

Accordingly, because notice and comment rulemaking would be impracticable and against the public interest, the Department hereby promulgates this IFR pursuant to 5 U.S.C. 553(b)(B). For the same reasons, good cause exists for the IFR to take immediate effect, and therefore, the Department sets the Effective Date to October 2, 2025 pursuant to 5 U.S.C. 553(d)(3).\57\

\57\ The Department further avers that the public is encouraged to engage in post-promulgation notice and comment, and that it intends to issue a “final” final rule wherein the Department will take consideration of the comments.

B. First, The Good Cause Exception Is Independently Supported Due to the Current Widespread and Novel Economic Hardship Faced by the Regulated Community

On January 20, 2025, President Trump issued Executive Order 14159, Protecting the American People Against Invasion, 90 FR 8443 (Jan. 29, 2025), in

response to an “unprecedented flood of illegal immigration into the United States” in recent years under the Biden Administration. The Order directs federal agencies to “employ all lawful means to ensure the faithful execution of the immigration laws of the United States against all inadmissible and removable aliens,” including those who committed illegal entry, have undocumented unlawful presence, or have final orders of removal. Id. at Section 3(b). The Order also calls for the efficient and expedited removal of aliens from the United States who are recent entrants (i.e., arrived within the last two years), enforcement of civil fines and penalties, and detention of all “removable aliens” until their removal proceedings are resolved or their removal from the country.

As noted in Presidential Proclamation 10888, Guaranteeing the States Protection Against Invasion, “[o]ver the last 4 years, at least 8 million illegal aliens were encountered along the southern border of the United States, and countless millions more evaded detection and illegally entered the United States.” 90 FR 83334 (Jan. 29, 2025). In March 2025, the Department of Homeland Security (DHS) determined “that an actual or imminent mass influx of aliens is arriving at the southern border of the United States and presents urgent circumstances requiring a continued federal response.” Finding of Mass Influx of Aliens, 90 FR 13622, 13622 (Mar. 25, 2025). Additionally, DHS has initiated voluntary departure efforts, including the use of a new mobile application (“CBP Home app”), consistent with Presidential Proclamation 10935, Establishing Project Homecoming, 90 FR 20357 (May 14, 2025).\58\

\58\ See CBP, CBP Home: Assistance to Voluntarily Self Deport, https://www.dhs.gov/cbphome [https://perma.cc/CK3X-QM79] (last visited June 17, 2025). The CBP Home app allows aliens to register to depart the United States voluntarily, provide required biographical information, and notify DHS after they have departed. DHS also offers financial and travel document assistance for some aliens who request it, provides a $1,000 stipend upon confirmation through the app that return has been completed, and rescinds civil monetary fines imposed for failure-to-depart after return has been completed. See also DHS, DHS Announces It Will Forgive Failure to Depart Fines for Illegal Aliens who Self-Deport Through the CBP Home App (June 9, 2025), https://www.dhs.gov/news/2025/06/09/dhs-announces-it-will-forgive-failure-depart-fines-illegal-aliens-who-self-deport [https://perma.cc/8RBN-PACA].

The size and scope of these recent emergency actions to secure the southern border of the United States and vigorously enforce the nation's immigration laws to protect the American people is producing measurable changes in migration and detention patterns. In its June 2025 monthly report, the United States Customs and Border Protection (CBP) reported historically low numbers of border encounters and parole releases, including zero illegal alien releases along the southwest border for the second consecutive month.\59\ CBP also noted record lows of 25,228 nationwide encounters, 8,024 nationwide apprehensions by U.S. Border Patrol, and zero parole releases compared to 27,766 released in June 2024. And finally, CBP made only 136 apprehensions on June 28: the lowest single-day total in agency history. By August 12, 2025, CBP continued to report that zero illegal aliens were released into the country for the third consecutive month with illegal crossings in July 2025 dropping to the lowest level ever recorded.\60\ This trend has continued, and illegal alien inflow stays at historic lows. On September 19, 2025, CBP reported a fourth straight month of zero releases at the border and illegal crossing rates remaining at 93% lower than the peak reached during the prior four years.” \61\ Further, the U.S. Border Patrol has reported an average of 204 apprehensions per day, a rate 96% lower than the daily average reached during the prior four years.\62\ Finally, in addition to the near total cessation of illegal inflow, illegal aliens are self-deporting at a rate which has been increasing at a high rate each month. Because of the very nature of voluntary departure, it is difficult to ascertain the exact number of self-deportations, but the confirmed number of voluntary departures went from just 592 in February 2025, to 4,241 in July 2025.\63\ This represents an increase of approximately 7.17 times over this period.

\59\ U.S. Custom Border and Protection, Department of Homeland Security, press release entitled “Most secure border in history: CBP reports major enforcement wins in June 2025,” July 15, 2025, available at https://www.cbp.gov/newsroom/national-media-release/most-secure-border-history-cbp-reports-major-enforcement-wins-june (last visited August 20, 2025).

\60\ U.S. Custom Border and Protection, Department of Homeland Security, press release entitled “Another record-setting month at CBP: Border continues to be most secure in history,” August 12, 2025, available at https://www.cbp.gov/newsroom/national-media-release/another-record-setting-month-cbp-border-continues-be-most-secure (last visited September 18, 2025).

\61\ See CPB, National Media Release: Trump Administration delivers 4 straight months of 0 releases at the border, nationwide crossings remain 93% lower than the peak under Biden Administration, https://www.cbp.gov/newsroom/national-media-release/trump-administration-delivers-4-straight-months-0-releases-border [INSERT PERMA LINK] (last visited September 20, 2025).

\62\ Id.

\63\ New ICE Data Shows Steady Rise in Immigrants Self- Deporting, Newsweek (Sept. 4, 2025, 3:08 p.m. EDT), updated (Sept. 5, 2025, 3:36 p.m. EDT) (last visited September 20, 2025), https://www.newsweek.com/ice-data-immigrants-self-deportation-trump-administration-2124106.

The efficacy of current immigration enforcement activities that prioritize a secure border is a direct result of the scope and speed of the federal government's response to the unparalleled scale of the illegal immigration crisis facing the United States.\64\ These enforcement efforts will imminently intensify following the enactment of H.R. 1, One Big Beautiful Bill Act, on July 4, 2025, under which Congress is immediately expanding federal investment in border security, detention capacity, and interior operations during fiscal years 2025 and 2026.\65\ As these resources are deployed to further strengthen the U.S. Southern Border and enforce immigration laws, and as more illegal aliens choose voluntary departure in response, the Department anticipates an imminent and significant decline in the number of available illegal aliens who had, in significant part, previously worked unlawfully in the U.S. agricultural sector.

\64\ Relevantly, U.S. Immigration and Customs Enforcement (ICE), which has responsibility for enforcing immigration laws within the interior of the United States, reported a record high of 56,816 in detention as of June 2025, and that number is expected to significantly increase. U.S. Immigration and Customs Enforcement, Department of Homeland Security, Detention Management Reports, FY 2025, available at https://www.ice.gov/detain/detention- management#:~:text=Detention%20Statistics. Of that group, 16,173, or 28 percent of the detained population, had a criminal conviction. An additional 13,891 people--24 percent--had pending criminal charges.

Agricultural employers, who have been incentivized to utilize illegal aliens for numerous reasons including the excessively high FLS- based AEWR, will imminently face severe challenges accessing a sufficient and legal supply of labor to sustain current food production levels. According to the Department's National Agricultural Worker Survey (NAWS),\66\ agricultural employers are disproportionately and increasingly dependent on illegal aliens with approximately 42 percent of crop workers surveyed reported lacking authorization to work in the United States during FY 2021-2022; compared to 36 percent in FY 2017- 2018. These workers, both illegal aliens and authorized U.S. crop workers, are also

settled and relatively immobile. Data from NAWS further shows that, in 2021-2022, only 3 percent of all U.S. crop workers reportedly migrated by following the crops while 84 percent of these workers remain settled and did not migrate for work at all. U.S. crop workers are also aging, as approximately 36 percent of the crop workers interviewed were 44 years of age or older, compared to less than 15 percent in 2000, and they spent an average of 8 years working for the same employer, compared to 3 years in 2000.

\66\ Findings from the National Agricultural Workers Survey (NAWS) 2021-2022: A Demographic Employment Profile of United States Crop Workers (Sept. 2023). U.S. DOL, Employment and Training Administration. Available at: https://www.dol.gov/sites/dolgov/files/ETA/naws/pdfs/NAWSResearchReport17.pdf.

In short, the agricultural sector is experiencing acute labor shortages and instability because it has long depended on a workforce with a high proportion of illegal aliens who previously cycled in and out of the U.S. through a porous border; now, however, those who might have cycled in cannot do so because of the now secure U.S. Southern Border. Further, the remaining workforce tends to be relatively immobile and unable to adjust quickly to shifting labor demands, resulting in significant disruptions to farmers' ability to meet seasonal labor needs.

Most concerning for the fragile agricultural workforce are the dwindling numbers of current U.S. crop workers who are planning to continue working in agriculture. According to the NAWS, just over one in every five U.S. crop workers surveyed were planning to remain in agriculture for up to 5 years, while approximately 53 percent reported that they could find a non-farm job within one month. Separately, with illegal border crossings at historic lows. Agricultural employers that have historically relied on such illegal aliens, are experiencing economic harm caused by mounting labor shortages. According to available studies, a hypothetical decision to heighten immigration enforcement actions could further reduce the supply of agricultural labor with an estimated loss of, at a relatively modest estimate, 225,000 \67\ agricultural workers.\68\

\67\ The true number is likely much higher when accounting for illegal aliens who are not deported but choose not to work to avoid exposure to potential enforcement actions. See e.g., Chloe East; Annie L. Hines; Philip Luck; Hani Mansour and Andrea Velasquez, (2023), The Labor Market Effects of Immigration Enforcement, Journal of Labor Economics, 41, (4), 957--996.

\68\ Rice University's Baker Institute for Public Policy noted in a March 26, 2025, article that “over 8 million undocumented immigrants currently work in the U.S., contributing to the economy in key industries. Mass deportations could worsen labor shortages, with estimates suggesting a reduction of 1.5 million in construction, 225,000 in agriculture, 1 million in hospitality, 870,000 in manufacturing, and 461,000 in transportation and warehousing. This would likely lead to higher costs, increased inflation, and slower economic growth, with states like California, Texas, and Florida facing the greatest impact.” See Social and Economic Effects of Expanded Deportation Measures, published by Tony Payan and Jos[eacute] Iv[aacute]n Rodr[iacute]guez-S[aacute]nchez of Rice University's Baker Institute for Public Policy at Social and Economic Effects of Expanded Deportation Measures [verbar] Baker Institute.

In addition, the Department does not believe American workers currently unemployed or marginally employed will make themselves readily available in sufficient numbers to replace large numbers of aliens no longer entering the country, voluntarily leaving, or choosing to exit the labor force due to the self-perceived potential for their removal based on their illegal entry and status. The supply of American agricultural workers is limited by a range of structural factors including the geographic distribution of agricultural operations, the seasonal nature of certain crops, and overall unemployment rate.\69\ Furthermore, agricultural work requires a distinct set of skills and is among the most physically demanding and hazardous occupations in the U.S. labor market. These essential jobs involve manual labor, long hours, and exposure to extreme weather conditions--particularly in the cultivation of fruit, tree nuts, vegetables, and other specialty crops for which production cannot be immediately mechanized. Based on the Department's extensive experience administering the H-2A temporary agricultural visa program, the available data strongly demonstrates--a persistent and systemic lack of sufficient numbers of qualified, eligible and interested American workers to perform the kinds of work that agricultural employers demand. In the most recent five years, for example, employer demand for H-2A workers has increased by 36 percent from 286,900 workers requested in FY 2020 to nearly 391,600 workers requested in FY 2024, and the Department has consistently certified at least 97 percent of employer demand for agricultural workers based on a lack of qualified, eligible, and interested U.S. workers. For FY 2025 and as of July 1, 2025, employers seeking H-2A workers have requested more than 320,700 worker positions and the Department has certified 99 percent of the demand based on a lack of qualified and eligible U.S. workers. Despite efforts to broadly advertise agricultural jobs, as required by the Department's regulations at 20 CFR 655.144, 150, 153, and 154, the most recent data confirm that domestic applicants are not applying for agricultural positions in sufficient numbers to meet the temporary or seasonal workforce needs of employers. Thus, based on the available evidence, the Department concludes that qualified and eligible U.S. workers, whether unemployed, marginally employed, or employed seeking work in agriculture, will not make themselves immediately available in sufficient numbers to avert the irreparable economic harm to agricultural employers who no longer have access to a ready pool of illegal aliens to fulfill their labor needs.

\69\ See Kelly Lester, Harvest on Hold, John Locke Society, April 28, 2025, at pp. 5; 23-28 (https://www.johnlocke.org/wp-content/uploads/2025/05/Agriculture-Crisis-Web.pdf); see also,.

With the historic near total cessation of illegal border crossings--the Department must take immediate action to provide agricultural employers with a viable workforce alternative while concurrently averting imminent economic harm. Labor shortages can have an immediate effect on farm operations. For example, one study found that a mere 10 percent decrease in the agricultural workforce can lead to as much as a 4.2 percent drop in fruit and vegetable production and a 5.5 percent decline in farm revenue.\70\ Given that approximately 42 percent of the U.S. crop workforce are unable to enter the country, potentially subject to removal or voluntarily leaving the labor force, these impacts will likely be dramatically higher. The study further estimated that a 21 percent shortfall in the agricultural workforce would result in an overall $5 billion loss just in terms of domestic fresh produce alone for U.S. consumers. Such significant economic impacts not only create tangible and imminent economic harms, but they structurally disrupt the ordinary operations of the U.S. agricultural sector, resulting in shortages of agricultural commodities that cannot be supplemented with imports in the near-term.

\70\ Zachariah Rutledge and Pierre M[eacute]rel, “Farm Labor Supply and Fruit and Vegetable Production,” American Journal of Agricultural Economics 105, no. 2 (August 15, 2022): 644-73, https://doi.org/10.1111/ajae.12332.

Given the scale, speed, and investment in the federal government's efforts to enforce immigration laws and restore the integrity of the U.S. border, the Department concludes that there will be significant labor market effects in the agricultural sector, which has long been pushed to depend on a workforce with a high proportion of illegal aliens. Because these illegal aliens often possess specialized skills suited to agricultural tasks and typically earn lower wages than authorized workers, their sudden and large-scale

departure is expected to significantly increase labor costs for employers. These cost increases are very likely to limit the ability of agricultural operations to maintain current production levels or expand employment, resulting in downstream impacts on food supply and pricing.

Labor expenses are already a major component of U.S. agricultural production costs, especially in the specialty crop sectors where relatively large numbers of illegal aliens are employed. According to USDA's Economic Research Service (ERS), labor expenses (including noncash employee compensation) are forecasted to reach a record high in 2025, rising $2.9 billion (5.9 percent) in 2024 to $51.7 billion and then increasing an additional $1.8 billion (3.6 percent) to $53.5 billion this year, driven by wage increases and ongoing labor shortages.\71\

\71\ Farm Sector Income & Finances: Farm Sector Income Forecast (Feb. 2025). U.S. Department of Agriculture, Economic Research Service.

Although hired domestic farmworkers only comprise less than 1 percent of all U.S. wage and salary workers, these workers are essential to U.S. agriculture. Without immediate action from the Department to assist employers in securing a reliable workforce alternative, labor shortages will likely intensify, driving up production costs, limiting output in key sectors such as fruits and vegetables, and increasing reliance on imported food products. USDA Economic Research Service (ERS) estimates that hired farm labor costs account for nearly 15 percent of total cash expenses across the sector, with labor-intensive sub-sectors, such as nurseries, greenhouses, and other specialty crop growers, devoting over 40 percent of their total cash expenses on labor.\72\

\72\ Subedi, Dipak & Giri, Anil K. (Oct. 2024). Specialty Crop Farms Have Highest Labor Cost as Portion of Total Cash Expenses. U.S. Department of Agriculture, Economic Research Service. Available at: https://www.ers.usda.gov/data-products/charts-of-note/chart-detail?chartId=110172. USDA ERS noted that farm wages have significantly increased both in absolute terms and relative to other occupations. For example, back in 1990, the average farm wage for nonsupervisory crop and livestock workers in real values was just over half the average real wage in the nonfarm sector for private nonsupervisory occupations. By 2022 the ratio had increased to 60 percent, as the gap between farm and nonfarm wages narrowed. “Farm Labor,” Economic Research Service, United States Department of Agriculture (USDA), last updated August 7, 2023, https://www.ers.usda.gov/topics/farm-economy/farm-labor/.

These sub-sectors of U.S. agriculture, which are heavily dependent on illegal aliens, are especially vulnerable to labor market imbalances and cost volatility. At the same time, American agriculture is under intense global pressure. In April 2025, for example, ERS reported that the number of farms in the United States continued its decline to 1.88 million in 2024, the lowest in more than a century, down from 2.04 million in 2017.\73\ And finally, after decades of consistent trade surpluses, U.S. agriculture is expected to face the largest trade deficit on record at $49.5 billion, driven in part by increased imports of labor-intensive commodities from countries with significantly lower production costs.\74\

\73\ USDA, Economic Research Service using data from USDA, National Agricultural Statistics Service, Census of Agriculture (through 2022) and Farms and Land in Farms: 2024 Summary (February 2025).

\74\ Hill, Alexandra E. & Sayre, James E. As Mexican Farmworkers Flock North, Will U.S. Farms Head South? (Oct. 2024). Outlook for U.S. Agricultural Trade: May 2025. ARE Update 28(1): 9-12. Giannini Foundation of Agricultural Economics, University of California. (“In 2022, the average non-H-2A U.S. farm worker earned $15 an hour; H-2A workers in California (the state with the highest AEWR that year) were required to be paid at minimum $17.51; and H-2A workers in Alabama, Georgia, and South Carolina (the states with the lowest AEWR in 2022) were required to be paid at minimum $11.99. By comparison, the average hired farmworker in Mexico earned the equivalent of $1.59 an hour in 2022. In the highest wage-paying state in Mexico, Colima, the average worker earned $2.53 an hour, a quarter of the minimum AEWR in that year.”). Available at: https://s.giannini.ucop.edu/uploads/pub/2024/10/29/v28n1_3.pdf.

As the U.S. agricultural workforce faces growing instability, employers' reliance on the H-2A visa program has expanded rapidly. Over the past decade, demand for nonimmigrant workers under the H-2A classification has quadrupled, and the program has become a critical legal workforce solution for employers, particularly in labor-intensive sectors such as specialty crops. However, the high costs to participate in the H-2A program--including the mandatory AEWRs on top of other non- wage costs such as housing, transportation, and fees--have become increasingly burdensome. These requirements go far beyond the compensation costs an employer would bear if they could hire enough qualified and eligible local U.S. workers, placing further financial strain on farming operations of all sizes in an industry already facing a record trade deficit \75\ and overall grim financial outlook.

\75\ Kaufman, J., Jiang, H., & Williams, A. (2025). Outlook for U.S. agricultural trade: May 2025 (Report No. AES-132). U.S. Department of Agriculture, Economic Research Service and U.S. Department of Agriculture, Foreign Agricultural Service. This forecast projects the largest agricultural trade deficit in U.S. history, with the first four months of the year resulting in a $19.7 billion deficit that is expected to continue to grow.

Over the last 20 years, the national average FLS-based AEWR has more than doubled from $8.56 in 2005 to $17.74 in 2025. Between 2005 and 2018, the average annual increase in the AEWR was already 2.8 percent, but the pace of annual wage growth since that time has increased significantly. Since 2019, the average annual increase in the AEWR was 5.5 percent, nearly double the rate of change in the earlier period and far outpacing the 4.4 percent average annual hourly wage growth of all other non-farm private sector workers.\76\ For 2025, the AEWRs across the country ranged from a low of $14.83 in the Delta Region covering the states of Arkansas, Louisiana, and Mississippi to a high of $19.97 in California. Notably, these rates exceed the local applicable minimum wage for domestic workers. These AEWR rates must be paid to workers in addition to the cost of other mandatory remuneration, benefits, and working conditions (e.g., housing, transportation) that workers receive under the H-2A program. AEWRs have risen substantially across all regions of the United States with the southeastern states experiencing a nearly 10 percent increase over 2024. More than 35 percent of states experienced an AEWR wage increase between 50 cents and 99 cents per hour while an additional 37 percent of states experienced an increase between $1 and $1.50 per hour. Nearly two-thirds of all states have an AEWR between $17 and $20 in 2025, which is well above federal and state minimum wage levels. Put another way, the national average AEWR increased by a total of $4.40 per hour in the 15-year period from 2005 to 2019. However, the national average AEWR has increased by more than $3.75 per hour within just the last 5 to 6 years.

\76\ Average Hourly Earnings of All Employees, Total Private (Jun. 2025). Federal Reserve Bank of St. Louis. Available at: https://fred.stlouisfed.org/series/CEU0500000003.

In its most recent May 2025 data release, USDA estimates that the national average hourly wage for field and livestock workers combined was $18.46 per hour based on data collected for the January 12-18 reference week, and $18.43 per hour based on data collected for the April 6-12 reference week, yielding a weighted average of $18.44 per hour, a further 4 percent increase over the current national average AEWR of $18.12 per hour.\77\ In a sector where profits margins are already thin, such increases place agricultural employers at a competitive

disadvantage, particularly when compared to growers in Mexico paying approximately $1 to $2 per hour.\78\

\77\ See May 2025 Farm Labor Report, National Agricultural Statistics Service (NASS), Agricultural Statistics Board, United States Department of Agriculture, (May 21, 2025).

\78\ For example, in 2023 and 2024, the U.S. farm sector reported overall declining profitability; the vast majority of farms earned $1,000,000 or less in gross sales. Stephanie Rosch, Christine Whitt, 2023 and 2024 Farm Sector Profitability: Issues for Congress (Dec. 21, 2024), available at https://www.congress.gov/crs-product/R48278?. U.S. farms that earned $100,000 or less reported less than $2,000 in average net cash farm income in 2023 and 2024, and reported negative average net cash farm income in 2019-2021. Id. With respect to production expenses, labor costs (including noncash employee compensation) are forecast to be a record high in 2025, rising $2.9 billion (5.9 percent) in 2024 to $51.7 billion. They are forecast to rise by an additional $1.8 billion (3.6 percent) to $53.5 billion in 2025. See U.S. Department of Agriculture, Economic Research Service. (2025, February 6). Farm sector income & finances: Farm sector income forecast.

Additional upward pressure on labor costs--whether due to continued AEWR escalation or other regulatory requirements \79\--threatens the viability of farming operations, especially as substantial numbers of illegal aliens are removed or voluntarily depart from the U.S. labor force.\80\ Based on the Department's program experience, the combination of rapid increases in the AEWRs, additional non-wage costs to employ H-2A workers, and other increases in regulatory compliance costs has materially slowed the overall growth of employer labor demand in the last two years with respect to the total number of H-2A workers being requested for labor certification. For instance, for several years prior to 2023, the average annual rate of growth in employer demand for H-2A worker positions was almost 15 percent. However, the growth in employer demand for H-2A workers has dramatically slowed to 1.98 percent in 2023 (398,908), compared to 2022 (382,354), and a mere 0.42 percent in 2024 (391,590).\81\

\79\ According to a recent study conducted as a cooperative research grant through the USDA's Office of the Chief Economist, researchers analyzed relevant non-wage costs on employers participating in the H-2A program, including fees, transportation, housing, and other recruitment expenses, finding that the minimum cost of nonwage expenses for H-2A workers is approximately $10,000 per worker. For employers requesting 100 workers, the estimated DOL and DHS fees would cost $15.60 per worker ($11 per worker in labor certification and $4.60 per worker in nonimmigrant worker petition), while applying for 10 workers would cost four times more. In addition, informal surveys of large H-2A employers suggest a typical recruitment fee of $100-$250 per worker and $1,500-$3,500 per application in U.S. agent costs. USDA estimates the cost of transporting H-2A workers to the United States from their home countries from $400 to $650 per worker with housing costs range between $9,000 and $13,000 per worker, making it the biggest nonwage expense for H-2A employers. See Marcelo Castillo, Philip Martin, and Zachariah Rutledge, Whither the H-2A Visa Program: Expansion and Concentration, published in Choices Magazine, Volume 39, Quarter 1 (June 2024) and available at https://www.choicesmagazine.org/choices-magazine/submitted-articles/whither-the-h-2a-visa-program-expansion-and-concentration (last visited September 14, 2025).

\80\ The Department is also aware of the extensive discussions in Congress on the AEWR and various bipartisan bills introduced to immediately alter the methodology for determining the AEWRs in the H-2A program. For example, on January 18, 2024, the Supporting Farm Operations Act of 2024 was introduced to freeze the AEWRs in effect on December 31, 2023, through the end of 2025. See Support Farm Operations Act. S. 3848, H.R. 7046, 118th Cong. (2024). Available at: https://www.congress.gov/bill/118th-congress/senate-bill/874/text; In January 2024, 75 members signed a letter to leadership on the House and Senate Committees on Appropriations requesting that an H-2A wage freeze be included in the Fiscal Year (FY) 2024 appropriations bill. See Rep. Bill Huizenga, et al. Letter to Members of the Committee on Appropriations (Jan. 11, 2024). Available at: https://huizenga.house.gov/uploadedfiles/jan._11_ltr_to_appropriators_re_h2a_wage_2024.pdf. On May 22, 2025, more than 100 members of Congress once again wrote a similar letter to leaders on the House Subcommittee on Labor, HHS and Education urging an H-2A wage freeze be included in the FY 2026 appropriations legislation. Specifically, the House members noted that the “skyrocketing AEWR will only compound inflated input costs like energy and fertilizer, other guest worker expenses like transportation and housing, and burdens from several impending federal regulations and fees . . . If we do nothing, many of our constituents will be forced to shutter their businesses, despite good-faith efforts to ensure our national food security and feed families across our nation.” See Rep. Bill Huizenga, et al. Letter to Chair and Ranking Member of the Subcommittee on Labor, HHS, and Education (Jan. 11, 2024). available at: https://huizenga.house.gov/uploadedfiles/final_h2a_wage_freeze_fy26.pdf.

\81\ Concerns regarding the negative effects of rapidly rising AEWRs in recent years were also noted by a bipartisan Agricultural Labor Working Group (ALWG), which was formed in 2023 by the House Committee on Agriculture. In its final report released on March 7, 2024, the ALWG noted that the “strictures of current law are driving up costs in the H-2A program and acting as barriers to entry for the program.” With unanimous support, the ALWG recommended a one-year freeze on the AEWRs and caps to increases and decreases to provide more stability and predictability related to an employer's wage obligations. See H. Rpt. Final Report with Policy Recommendations. House Committee on Agriculture, Agricultural Labor Working Group at 10. Available at: https://agriculture.house.gov/uploadedfiles/alwg_final_report_-_3.7.23.pdf.

Importantly, these rising AEWR levels have not resulted in a meaningful increase in new entrants of U.S. workers to temporary or seasonal agricultural jobs. Agricultural work remains physically demanding, often takes place in remote locations, carries health and safety risks, and typically lacks advancement opportunities--factors that continue to discourage participation by the domestic workforce. Despite rising wages, such jobs are still not viewed as viable alternatives for many workers. At the same time, U.S. demand for fresh fruits and vegetables continues to grow, and the vast majority of this labor remains non-automated. Decline in the illegal alien population will only exacerbate this already pressing mismatch in the agricultural labor market and deprive growers of a relatively cheaper labor supply on which they have become economically reliant. (A substantial body of research estimates that illegal alien workers earn between four percent and 24 percent less than similarly situated legal workers, giving employers a strong financial incentive to hire illegal labor.) \82\ Despite rising wages, there is no indication that unemployed or marginally attached U.S. workers are entering the agricultural labor force in meaningful numbers. Without swift action, agricultural employers will be unable to maintain operations, and the nation's food supply will be at risk.

\82\ See Borjas, George J., and Hugh Cassidy, The wage penalty to undocumented immigration. Labour Economics 61 (2019): 101757; Donato, Katharine M., and Douglas S. Massey. “Effect of the Immigration Reform and Control Act on the wages of Mexican migrants. ” Social Science Quarterly (1993): 523-541; Kossoudji, Sherrie A., and Deborah A. Cobb-Clark. “Coming out of the shadows: Learning about legal status and wages from the legalized population.” Journal of Labor Economics 20, no. 3 (2002): 598-628; Rivera-Batiz, Francisco L. “Undocumented workers in the labor market: An analysis of the earnings of legal and illegal Mexican immigrants in the United States.” Journal of Population Economics 12, no. 1 (1999): 91-116.)

Under such conditions, the current methodology for determining the AEWRs is an unworkable barrier to securing a legal agricultural workforce. The H-2A program should be a viable legal pathway--not a regulatory dead end. The Department has long recognized that “clear congressional intent was to make the H-2A program usable, not to make U.S. producers non-competitive” and that “[u]nreasonably high AEWRs could endanger the total U.S. domestic agribusiness, because the international competitive position of U.S. agriculture is quite fragile.” \83\ The unreasonably high FLS-based AEWRs were only workable because agricultural employers could turn to low-priced illegal aliens, but that is no longer the case. U.S. agricultural employers need a legal and stable workforce to support their farming operations, and persistent labor shortages and increases in production costs will only harm U.S. competitiveness, threaten food production, drive up consumer prices, and create instability in rural communities.

\83\ 54 FR at 28046.

Thus, the Department concludes, based on all available evidence and studies, that immediate reform to the H-2A program's minimum wage policy, or the AEWRs, is necessary to avoid imminent widespread disruption across the U.S. agricultural sector. Without prompt action, agricultural employers

will face severe labor shortages, resulting in disruption to food production, higher prices, and reduced access for U.S. consumers, particularly to fresh fruit and vegetables. Further, the Department concludes that qualified and eligible U.S. workers will not make themselves available in sufficient numbers, even at current wage levels, to fill the significant labor shortage in the agricultural sector. As discussed in detail below, the reforms contained in this IFR of the H-2A program's wage policy are urgently needed to restore the usability of the H-2A program and to provide a practical, lawful workforce alternative to illegal aliens. These changes ensure that agricultural employers offer fair wages to legally authorized workers-- consistent with wages paid in comparable farm and non-farm jobs--while maintaining compliance with immigration law and supporting the stability of the nation's food supply.

As the regulatory impact analysis indicates, the Department anticipates negative impacts for certain populations associated with this regulation. In particular, certain current H-2A workers may experience reductions in wages as a result of lower prevailing wage rates. However, the Department expects that this effect will be mitigated by an increase in the number of certified H-2A job opportunities, which will create additional employment for new H-2A workers who may otherwise lack access to lawful agricultural employment in the United States. The Department also acknowledges that illegal aliens currently employed in agriculture may be adversely affected as growers shift toward reliance on the lawful H-2A program rather than illegal aliens.

C. Second, the Good Cause Exception is Separately and Independently Supported by the Discontinuation of the FLS by the Department of Agriculture and the Court Ordered Vacatur of the 2023 AEWR Final Rule

As discussed above, in Section I.D., on August 21, 2025, plaintiffs in Teche Vermilion filed a Motion for Entry of Final Judgment requesting that the court convert its preliminary injunction into a final judgment and to accordingly vacate the 2023 AEWR Final Rule.\84\ On August 25, 2025, the Western District of Louisiana granted plaintiffs' unopposed Motion for Entry of Final Judgment and ordered the 2023 AEWR Final Rule vacated.\85\ As a result of the vacatur, the methodology for determining the AEWRs reverted back to the 2010 H-2A Final Rule which sets the AEWRs based solely on the annual weighted average hourly wage for field and livestock workers (combined) as reported by the FLS and published in November each year by USDA.\86\

\84\ Motion For Entry of Final Judgment, Teche Vermilion Sugar Cane Growers Ass'n Inc. v. Su, No. 6:23-cv-00831-RRS-CBW (W.D. La. Aug. 21, 2025), ECF No. 86.

\85\ Judgment, Teche Vermilion Sugar Cane Growers Ass'n Inc. v. Su, No. 6:23-cv-00831-RRS-CBW (W.D. La. Aug. 21, 2025), ECF No. 87.

\86\ 20 CFR 655.103 (2010); 20 CFR 655.120(c) (2010).

However, on August 11, 2025, USDA made the determination, based on its own statutory authority, to discontinue surveys and further administration of the FLS program and the request was subsequently approved by OIRA on August 12, 2025, with an immediate effective date of August 31, 2025.\87\ As a result of this determination, USDA canceled the October quarter's data collection for the FLS that collects employment and wage information for the July and October 2025 quarters from farm establishments. Without the October data collection, USDA cannot produce a November 2025 report containing the annual gross hourly wage rates for field and livestock workers (combined) for each state or region based on quarterly wage data collected from employers during calendar year 2025. Under the 2010 H-2A Final Rule methodology for establishing the AEWRs, the November 2025 FLS report would be used to establish and publish the hourly AEWRs for the next calendar year period on or before December 31, 2025, as required by the Department's regulations.\88\

\87\ https://www.reginfo.gov/public/do/PRAOMBHistory?ombControlNumber=0535-0109#; 90 FR 42560 (Sep. 3, 2025).

\88\ 20 CFR 655.120(c) (2010).

Because the methodology for establishing the AEWRs under the 2010 H-2A Final Rule does not provide for the use of a data source other than USDA FLS, USDA's recent determination to discontinue administration of the FLS program created an imminent regulatory gap, leaving the Department without the means to establish updated AEWRs for the 2026 calendar year period. Given the requirement to publish updated AEWRs on or before December 31, 2025, immediate action is necessary.

In the absence of the FLS, the methodology for establishing the AEWRs under the 2010 H-2A Final Rule provides the Department with no other mechanism for establishing the annual AEWRs that it is required to publish pursuant to 29 CFR 655.120(c). Section 20 CFR 655.103 requires the Department to base the AEWR on the FLS survey “as published annually” based on USDA's “quarterly wage survey.” However, as explained above, these data will not be published due to USDA's discontinuation of its FLS. There are no other provisions establishing what an “AEWR” is for purposes of 20 CFR 655.120(c).

The Department seeks to fill this imminent regulatory gap and promote long-term stability in administering the H-2A program by immediately adopting revisions to the AEWR methodology that rely on the BLS OEWS as the sole source of employment and wage information for establishing more precise skill-based AEWRs for all job opportunities specific to each state, which the FLS is not capable of reporting. Employers using the H-2A program depend on the existence of regularly published AEWRs to understand their minimum wage obligations to workers, and the Department has a statutory mandate to protect the wages of similarly employed U.S. workers from adverse effect. The Department's inability to establish the AEWRs for calendar year 2026 would lead to a regulatory collapse of minimum wage requirements in the H-2A program as employers would face significant economic uncertainty with respect to what minimum wage requirements would apply and be enforced by the Department under their work contracts with farmworkers.\89\

\89\ Moreover, in the absence of a FLS-based AEWR, the requirements set forth under the 2010 H-2A Final Rule at 20 CFR 655.120 provides that a regulated employer would have to offer the highest of “the AEWR [which no longer exists], the prevailing hourly wage or piece rate, the agreed-upon collective bargaining wage, or the Federal or State minimum wage, except where a special procedure is approved for an occupation or specific class of agricultural employment.” While failure to publish an AEWR is problematic, in its own right, as a failure of the Department to satisfy a regulatory mandate, it would also lead to Federal or State minimum wages being the next highest rate in many instances.

In short, the status quo following the Teche Vermilion order to vacate the 2023 AEWR Final Rule and discontinuation of the FLS by USDA in August 2025 will lead to a disruptive and uncertain regulatory environment. This outcome would occur either if the Department did nothing, or if the Department opted to publish this rule via notice and comment instead of as an IFR. Therefore, good cause exists for the Department to provide a new methodology for determining the AEWRs so the Department can publish new AEWRs in time for employers to use by the start of 2026.

Recognizing the need to publish a notice in the Federal Register before the

end of calendar year 2025, the Department has considered but rejected relying on the 2024 AEWRs and later switching to the IFR's proposed methodology. Crucially, because the FLS has been discontinued by USDA, there is no USDA data collection that could occur in time for the mandatory January 1, 2026 publication of the AEWRs. Because the Department will have to change to the OEWS in any event, it is clear that the benefits of making the switch immediately outweigh the minor costs. As explained in detail below, the Department has determined that the OEWS is a superior data source to the FLS for establishing more precise skill-based AEWRs covering all job opportunities specific to each state and will possess an even higher degree of superiority once the anticipated expansion of the OEWS to collect information from farm establishments begins during calendar year 2026. The Department sees no benefit in continuing to rely, even temporarily, on AEWRs established under the 2010 Final Rule using a methodology and data sources that cannot produce more precise estimates of the average wages paid to U.S. workers similarly employed based on the skills and qualifications required by employers who are seeking to employ H-2A nonimmigrant workers, and then instituting a new methodology shortly thereafter during the peak filing months of November through March and after many employers have business contracts in place.\90\

\90\ Courts have frequently recognized that this kind of a “regulatory vacuum” militates in favor of finding good cause. See e.g., Am. Fed'n of Gov't Emp., AFL-CIO v. Block, 655 F.2d 1153, 1157 (D.C. Cir. 1981) (“Although the trial judge indicated that he was only voiding the status quo order and was not mandating the action to be taken by the Department to comply with his injunction, the absence of specific and immediate guidance from the Department in the form of new standards would have forced reliance by the Department upon antiquated guidelines, thereby creating confusion among field administrators, and caused economic harm and disruption to those northeastern processors whose inspection lines ran at varying speeds.”); Coal. for Parity, Inc. v. Sebelius, 709 F. Supp. 2d 10, 20 (D.D.C. 2010) (“courts within this Circuit have considered the need for regulatory guidance as one factor in assessing whether an agency has “good cause” to forego notice and comment.”) Indeed, as in AFL-CIO v. Block, the mere existence of an undesirable “backstop” does not weigh against a finding of good cause.

Accordingly, in addition to, and as a separate and independent basis for good cause, (1) the Teche judgment that vacated the 2023 AEWR Final Rule and replaced it with the 2010 AEWR Final Rule, and (2) the discontinuance of the FLS creates a need for immediate action to ensure compliance with the regulatory requirement to establish updated AEWRs for 2026. The Department must take effective action by January 1, 2026, otherwise, the H-2A application environment will be subject to disruption and uncertainty. The Department explains in great detail why the methodology that this IFR implements is the best possible methodology. There is simply no good reason why the Department should opt for a different methodology on a temporary basis before switching to the new one. Indeed, such oscillations on a short-term basis would be disruptive.

This IFR amends the AEWR methodology announced in the 2010 H-2A Final Rule and amends the regulatory text in 20 CFR 655.120(b) which had not been amended after the vacatur of the 2023 AEWR Final Rule. Any job orders for non-range job opportunities submitted to the OFLC National Processing Center (NPC) in connection with an Application for Temporary Employment Certification for H-2A workers before the effective date of this final rule will be processed using the 2010 H-2A Final Rule methodology, under which the AEWR for all non-range H-2A job opportunities is equal to the annual average hourly gross wage rate for field and livestock workers (combined) in the State or region as reported by FLS. That means employers must pay the wage rate listed in a currently certified job order to all H-2A workers and all workers in corresponding employment for the duration of the work contract period provided it is still higher than the applicable AEWR published under this IFR. See 20 CFR 655.120(b)(5)-(6). The methodology established by this IFR, as described in revisions adopted by the Department under 20 CFR 655.120(b)(1)(iii), applies to any job orders for non-range job opportunities submitted to the NPC in connection with an Application for Temporary Employment Certification, as set forth in 20 CFR 655.121, on and after the effective date of this IFR, including job orders filed concurrently with an Application for Temporary Employment Certification to the NPC for emergency situations under 20 CFR 655.134.

In order for employers to understand their wage obligations upon the effective date of this IFR, the Department is listing below the statewide AEWRs for Skill Level I (Entry-Level) and Skill Level II (Experience-Level) qualifications applicable to the field and livestock workers (combined) category for each state pursuant to 20 CFR 655.120(b)(1)(i). In addition, the Department is listing in the last column the statewide downward compensation adjustments to the applicable AEWRs that can only be applied to H-2A workers who are provided with housing at no cost pursuant to 20 CFR 655.120(b)(3) of this IFR. For example, if employers are seeking to employ H-2A workers in Alabama for jobs in any of the five SOC codes encompassed by the “field and livestock workers (combined)” category, their job orders would specify in the job order (i.e., Field A.8b of the Form ETA-790A) a wage offer to U.S. workers no less than $11.25 per hour where the duties and qualifications are commensurate with a Skill Level I position. For any H-2A worker(s) employed under the associated temporary agricultural labor certifications, employers would specify in Field A.8e or Addendum A of the job order wage offers to H-2A workers no less than $10.05 per hour ($11.25 per hour for Skill Level I minus $1.20 per hour adjustment).

Additionally, the Department has posted contemporaneously with the publication of this IFR, a Microsoft Excel file on the OFLC Foreign Labor Application Gateway (FLAG) System at https://flag.dol.gov/wage-data/adverse-effect-wage-rates enabling interested parties to locate, by State and SOC code, the AEWR applicable for Skill Level I (Entry- Level) and Skill Level II (Experience-Level) qualifications covering all other non-range job opportunities pursuant to 20 CFR 655.120(b)(1)(ii) of this IFR.

TABLE--STATEWIDE HOURLY AEWRS DETERMINED UNDER Sec. 655.120 (b)(1)(I) AND COMPENSATION ADJUSTMENT FOR H-2A

WORKERS ONLY

Skill level II H-2A adverse

State Skill level I (experience- compensation

(entry-level) level) adjustment

Alabama......................................................... $11.25 $14.95 -$1.20

Alaska.......................................................... 14.79 20.01 -1.90 Arizona......................................................... 15.32 18.01 -2.10 Arkansas........................................................ 13.40 16.18 -1.13 California...................................................... 16.45 18.71 -3.00 Colorado........................................................ 16.28 20.02 -2.18 Connecticut..................................................... 15.93 18.20 -2.06 Delaware........................................................ 14.61 19.63 -1.85 District of Columbia............................................ 17.47 23.80 -2.64 Florida......................................................... 12.47 15.06 -2.29 Georgia......................................................... 12.27 16.22 -1.75 Guam............................................................ 9.70 10.89 -2.35 Hawaii.......................................................... 14.36 18.49 -3.18 Idaho........................................................... 12.92 17.07 -1.84 Illinois........................................................ 15.48 18.75 -1.79 Indiana......................................................... 14.93 19.22 -1.27 Iowa............................................................ 14.20 18.87 -1.15 Kansas.......................................................... 12.69 18.14 -1.26 Kentucky........................................................ 13.94 17.99 -1.24 Louisiana....................................................... 9.59 14.84 -1.35 Maine........................................................... 14.81 18.95 -1.60 Maryland........................................................ 15.35 18.21 -2.31 Massachusetts................................................... 15.29 17.57 -2.42 Michigan........................................................ 13.78 17.47 -1.32 Minnesota....................................................... 14.60 19.33 -1.68 Mississippi..................................................... 9.74 14.92 -1.15 Missouri........................................................ 14.56 18.74 -1.28 Montana......................................................... 13.03 18.48 -1.80 Nebraska........................................................ 14.20 19.26 -1.24 Nevada.......................................................... 14.54 18.40 -2.15 New Hampshire................................................... 13.99 16.14 -1.96 New Jersey...................................................... 16.05 19.41 -2.28 New Mexico...................................................... 12.51 16.20 -1.44 New York........................................................ 15.68 18.75 -2.40 North Carolina.................................................. 12.78 16.39 -1.69 North Dakota.................................................... 12.31 18.98 -1.27 Ohio............................................................ 14.38 18.11 -1.23 Oklahoma........................................................ 11.27 16.01 -1.22 Oregon.......................................................... 15.25 17.62 -2.11 Pennsylvania.................................................... 13.88 17.99 -1.52 Puerto Rico..................................................... 9.50 10.37 -0.71 Rhode Island.................................................... 14.15 17.17 -1.87 South Carolina.................................................. 12.14 15.92 -1.54 South Dakota.................................................... 13.19 17.48 -1.20 Tennessee....................................................... 12.44 16.64 -1.60 Texas........................................................... 11.81 15.67 -1.84 Utah............................................................ 12.48 16.86 -1.84 Vermont......................................................... 15.96 19.23 -1.61 Virgin Islands.................................................. 10.98 14.34 -1.59 Virginia........................................................ 13.90 18.40 -2.08 Washington...................................................... 16.53 19.00 -2.49 West Virginia................................................... 12.00 16.15 -1.12 Wisconsin....................................................... 13.29 18.22 -1.29 Wyoming......................................................... 11.34 17.23 -1.32

When the OFLC Administrator publishes subsequent updates to the AEWRs in the Federal Register, as required by 20 CFR 655.120(b)(4) of this final rule, the adjusted AEWRs will be effective as of the date of publication in the corresponding Federal Register notices. If the new AEWR applicable to the employer's certified job opportunity is higher than the highest of six applicable wage rates--the previous AEWR, the current prevailing hourly wage rate, the current prevailing piece rate, the current agreed-upon collective bargaining wage, the current Federal minimum wage rate, or the current State minimum wage rate, the employer must pay that adjusted AEWR upon the effective date of the new rate. See 20 CFR 655.120(b)(5). Conversely, if an updated AEWR for the occupational classification and geographic area is published in the Federal Register during the work contract, and the updated AEWR is lower than the rate guaranteed on the job order, the employer must continue to pay at least the rate guaranteed on the job order. See 20 CFR 655.120(b)(6).

The Department also acknowledges that there are four different parties with potential reliance interests that are likely to be impacted by this IFR: (1)

agricultural employers; (2) U.S. workers currently, or potentially, employed in the agricultural sector; (3) non-U.S. workers currently, or potentially, legally employed in the agricultural sector via the H-2A rules; and (4) the U.S. consumers of U.S.-grown agricultural commodities. The Department has carefully considered the impact of this IFR on each of these groups, especially in this IFR's economic analysis of transfers and rule familiarization costs. The Department acknowledges that the overall impact of this new methodology will be a reduction in the AEWRs, or minimum hourly wage rate floors for H-2A workers and workers in corresponding employment that are likely to result in wage transfers to employers as a result of adopting more precise skill-based AEWRs based on the actual qualifications of the job opportunity as well as the adverse housing adjustment factor. The Department acknowledges these reliance interests and has accounted for them in this IFR, but as an initial matter concludes that they are far outweighed by other reliance interests and other significant reasons that support the promulgation of this IFR.

First, the Department believes that, in many ways, the IFR serves these groups' reliance interests, including those of U.S. agricultural employers who, by virtue of being recurring seasonal users are the most likely participants in the H-2A system to have serious reliance interests. Most significantly, the discontinuation of the FLS by the USDA has created a regulatory vacuum that this IFR fills. The Department believes a key reliance interest among these recurring participants in the H-2A program is to have an AEWR that is published and can be used for facilitating the preparation of H-2A job orders and applications at the start of the calendar year, regardless of regulatory methodology that determines the AEWRs. By putting a new methodology in place before the start of the calendar year, this IFR ensures that this reliance interest is not damaged by the regulatory vacuum caused by the discontinuation of the FLS. The Department believes that the analysis of rule familiarization costs thoroughly accounts for the reliance interests of U.S. agricultural employers and demonstrates that they are offset by the benefits of an increased supply of H-2A workers.

Moreover, the Department has demonstrated that changes to the AEWR methodology are necessary to use a more reliable and robust source of data and that more accurately accounts for both the wide array of occupations in the H-2A program, and the varying qualifications and skill levels of the work required by employers. Critically, the methodological changes contained in this IFR are more reflective of the market-based wages being paid to U.S. workers similarly employed, and reducing any distortion caused by the previous AEWR methodology that created exorbitant wages. Thus, the Department initially concludes that these changes will allow it to better carry out its statutory mandate in a manner that balances the needs and interests of workers and agricultural employers.

Turning to the potential reliance interest of U.S. workers in the current methodology, the evidence relied on throughout this IFR strongly indicates that such reliance is tethered to a labor market that is dramatically changing and increasingly unstable. As discussed, the current and imminent labor shortage and the subsequent natural correction of a labor market artificially impacted by illegal aliens cannot be avoided. The Department simply has no evidence of the existence of a substantial population of U.S. workers who are willing and able to accept wage rates that are reasonable and proportionate to agricultural work but are deterred from entering agricultural work by AEWR-priced H-2A workers. And such reliance interest is vitiated by the USDA's discontinuation of the FLS: even if the Department did nothing, the FLS will cease, thus making any reliance interest on it misplaced (and, as explained above, reinforcing the benefit of this IFR to reliance interests by filling the regulatory gap). Such a slight-to-nil reliance interest is far outweighed by the duty the Department has to address the now correcting labor market, and implement the AEWR methodology laid out here, for those lawful H-2A workers, and all of the other evidence and reasons that are set forth in this IFR.

As to H-2A workers, to the extent such reliance exists, it is based on voluntary participation in temporary and seasonal work contracts authorized under the H-2A program. The Department initially concludes that if such a reliance interest could even be said to exist, it is too highly attenuated and speculative to be given much if any weight. The Department also acknowledges that U.S. workers in corresponding employment may have similar reliance interests, but these interests are outweighed by the evidence and reasons that support this IFR. And, the Department expressly acknowledges the bottom-line reliance interest that these workers may have--their level of expected remuneration in robust detail in this IFR's analysis of transfers. The Department has considered other potential reliance interests, such as a H-2A workers potential financial planning based on an expected level of compensation rooted in the FLS, but considers these of low weight for two reasons with respect to this IFR: first, because the USDA's discontinuation of the FLS already undermines this expectation regardless of this IFR; and second, because it is highly attenuated, relying on numerous logical steps for any particular individual. To the extent these are reliance interests at all, the Department does not consider them to rise to the level of serious reliance interests requiring further analysis but welcomes comment on this aspect of the IFR.

Finally, with respect to U.S. consumers of agricultural products, their potential reliance interests with respect to the H-2A program are that the program will supply a sufficient level of labor to maintain the production of agricultural commodities at a reasonable price. This IFR enhances this reliance interest by filling the aforementioned regulatory vacuum to ensure the stability of the H-2A system, by making the AEWR more precise and tethered to the real world skill-level requirements of jobs, thereby allowing market forces to dictate the cost of labor, while also eliminating the 2010 AEWR rule that set an artificially and unreasonably high price floor for H-2A labor.

The Department welcomes public comment on what, if any, reliance interests exist among these groups, among specific subgroups or individuals that compose these groups, any groups with reliance interests that have not been identified, and any evidence or data that has probative value of any of these issues.