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

As noted in prior rulemaking, the Department has always sought to use the best available information on occupational wages representing workers in the United States similarly employed. For the reasons discussed below, and in light of the determination that immediate reform to the H-2A program's minimum wage policy, or the AEWRs, is necessary to avoid widespread disruption across the U.S. agricultural sector, the Department is amending its methodology to use the average hourly gross wage reported by the BLS OEWS as the sole source of

wages for establishing two skill-based AEWRs that account for wage differentials arising from qualifications contained in the employer's job offer for all job opportunities under the H-2A program. Although currently used to establish skill-based prevailing wages for all agricultural and nonagricultural job opportunities in other nonimmigrant and immigrant visa programs based on the collection of employment and wage information from non-farm establishments such as farm labor contractors, the Department is incorporating farm establishments into the OEWS sampling methodology beginning in FY 2026. Once data collection is initiated with the May 2026 semi-annual panel, the expanded OEWS survey collection may start to reflect occupational employment and wage information into the two skill-based AEWRs from farm establishments on and after the May 2027 release. The Department concludes that this change will ultimately provide more accurate wage information based on a much larger and robust sample of the employer establishments employing workers to perform agricultural related services or labor covering a broader survey reference period across all states where employers may seek labor certification to employ foreign workers for temporary or permanent employment in the United States. The adoption of the OEWS as the sole source of employment and wage information will provide the Department with a single source of data, within its control, that can consistently and more precisely establish skill-based prevailing wages, including AEWRs, for all job opportunities specific to each state, which the FLS is not capable of reporting.

For many years, the Department has noted that wage data available in the FLS and the OEWS represent the best information available for determining the AEWRs in the H-2A program. The FLS collected employment and wage information based on a survey of farm and ranch establishments, which included any establishment with $1,000 or more in annual agricultural sales (or potential sales), semiannually in April and October.\91\ The survey was conducted primarily by mail or online, with telephone follow-ups to obtain responses from nonrespondents, or, if needed, to clarify written responses. Beginning with the July and October 2021 timeframe, the FLS utilized a smaller national sample size of over 16,000 operations to align with reductions in funding for the statistical program and adjustments for declining survey participation rates. The survey requested that employers provide, in aggregate and by occupation, the total number of hired workers, the total hours worked by all hired workers, and the total weekly gross wages paid to all hired workers in each occupation during the second weeks of January, April, July, and October. Gross wages were defined as the total amount paid to workers before taxes and other deductions, including overtime, bonus pay, workers' shares of social security and unemployment insurance, and other in-kind payments (e.g., agricultural products provided in lieu of wages), but not including benefits such as housing, meals, or insurance. USDA used these data to estimate the employment, average hours, and gross wages for a subset of six occupational classifications covering field and livestock workers (combined) and other hired workers in January and April (published in May) and in July and October (published in November). Separate estimates were published for each of the six individual occupations and for farm managers and supervisors at the national level, but not for each state or farm production region due to insufficient sample sizes. Further, because it collects aggregate data related to the gross wages paid to all hired workers in each occupation, as opposed to the gross wages paid to each hired worker in each occupation during the reference period, the FLS is not capable of reporting more precise wage estimates for any occupation-specific wage distribution to approximate wage differentials paid to U.S. workers similarly employed in a particular occupation and state.

\91\ The NASS Agricultural Labor Survey is typically conducted semi-annually in April and October, in all surveyed states except California. For the current survey iteration, California labor data were collected on a quarterly basis, through the California Employment Development Department (EDD) program.

Separately, the BLS OEWS survey remains the largest ongoing statistical survey program of the federal government, producing employment and gross wage estimates for more than 830 SOC codes, and is used as the primary wage source for establishing skill-based prevailing wage determinations at local and state geographic areas in other nonimmigrant and immigrant visa programs administered by the Department.\92\ The OEWS survey primarily covers wage and salary workers in non-farm establishments and does not include the self- employed, owners and partners in unincorporated firms, household workers, or unpaid family workers.\93\ Like the FLS, the survey is conducted primarily by mail, with telephone follow-ups to nonrespondents, or, if needed, to clarify written responses.\94\ Each year, two semiannual panels of approximately 179,000 to 187,000 sampled establishments are contacted, one panel in May and the other in November. Thus, the OEWS employment and gross wage estimates are constructed from a sample of about 1.1 million establishments collected over a 3-year period, which allows the production of data at detailed levels of geography, industry, and occupation and accounts for approximately 57 percent of employers in the United States.\95\ OEWS data are published annually with a May reference date. Wages are defined as straight-time, gross pay, including piece rates, but, unlike the FLS, excludes other forms of pay such as overtime, shift differentials, and non-production or any year-end bonuses.\96\ Further, because it collects the gross wages paid to each worker in each occupation during the reference period, the OEWS can consistently report more precise wage estimates for any occupation-specific wage distribution to approximate wage differentials paid to U.S. workers similarly employed in a particular occupation and state.

\92\ See, e.g., 20 CFR 655.731(a)(2)(ii)(A) (H-1B program, for specialty (professional) workers) and 20 CFR 656.40(b)(2) (Permanent Labor Certification program, for permanent employment of foreign workers).

\93\ Although the OEWS has not historically covered farm establishment, the survey was expanded in 2011 to cover farms as part of the Green Goods and Services program but subsequently cut as part of the sequestration due to the Budget Control Act of 2011. See Stella D. Fayer, “Agriculture: Occupational Employment and Wages,” Monthly Labor Review, DOL, BLS, July 2014, https://doi.org/10.21916/mlr.2014.25. The President's budget request for FY 2024 includes $1,137,000 to restore data collection for agricultural industries to the OEWS program. See Department of Labor, FY 2024 Congressional Budget Justification, Bureaus of Labor Statistics, https://www.dol.gov/sites/dolgov/files/general/budget/2024/CBJ-2024-V3-01.pdf.

\94\ Id.

\95\ See Occupational Employment and Wage Statistics Frequently Asked Questions, BLS. Available at: https://www.bls.gov/oes/oes_ques.htm (last modified Aug. 13, 2021).

\96\ The OEWS uses the term “mean.” However, for purposes of this regulation the Department uses the term “average” because the two terms are synonymous, and the Department has traditionally used the term “average” in setting the AEWR from the FLS.

As explained through extensive rulemaking, the Department seeks to rely on the best available information to carry out its statutory mandate and has acknowledged that neither the FLS nor the OEWS are perfect as both surveys

have shortcomings.\97\ In a March 2024 study comparing occupational wage data collected across a wide array of government-based surveys, the Congressional Research Service (CRS) affirmed the Department's finding that the “FLS and the OEWS are the only data sources currently available that provide state- or region-level wage estimates for agricultural occupations.” \98\ In addition, in a survey of farm and ranch establishments that directly hire workers, CRS similarly observed that the FLS provides wage estimates only for field and livestock worker (combined) occupations and does not reflect wages paid by farm establishments for agricultural labor or services provided by workers who are employed by farm labor contractors, or non-farm support establishments, or any wage information for farm establishments in Alaska or the U.S. territories. Regarding the OEWS, CRS noted that the survey publishes wage estimates by occupation for a wide array of local, state, and national geographic areas across all non-farm industries, but does not publish wage estimates within the “Crop Production” or “Animal Production” industries that are generally covered by the FLS. However, with the discontinuation of the FLS by USDA and based on a determination to establish skill-based AEWRs that account for wage differentials arising from qualifications contained in the employer's job offer for all job opportunities under the H-2A program, the Department has determined that the OEWS survey is the best available alternative source of employment and wage information to use in determining the AEWRs. Accordingly, the Department has made corresponding revisions to 20 CFR 655.120 by removing references to the USDA FLS.\99\ The Department will use the OEWS as the sole wage source for determining two skill-based AEWRs for all SOC codes, including those covered by the field and livestock workers (combined) category and those not included like first-line supervisors of farm workers or construction laborers where the duties, skills, and qualifications are the same or substantially similar to U.S. workers employed by non-farm establishments.

\97\ See 73 FR at 7713 where the Department notes that “the FLS and the OES survey are the leading candidates among agricultural wage surveys potentially available to the Department to set AEWRs. Neither survey is perfect. In fact, both surveys have significant shortcomings. On balance, however, the Department has concluded that in light of the current prevalence of illegal aliens in the agricultural labor market, AEWRs derived from OES survey data will be more reflective of actual market wages than FLS data, and thus will best protect the wages and working conditions of U.S. workers from adverse effects.”

\98\ The CRS study compared the agricultural wage data currently used in calculating the AEWR with the wage data available from the Agricultural Resources Management Survey (ARMS), the Census of Agriculture (COA), the American Community Survey (ACS), the Current Population Survey (CPS), the Quarterly Census of Employment and Wages (QCEW), the National Economic Accounts, and the National Agricultural Workers Survey (NAWS). See Elizabeth Weber Handwerker, Measuring Wages in the Agricultural Sector for the H-2A Visa Program, Congressional Research Service, Report No. R47944 (March 5, 2024). Available at: https://www.congress.gov/crs-product/R47944.

\99\ The Department has acknowledged in prior rulemaking that USDA controlled administration of the FLS, suspended the survey several times in the past, and retained discretion to unilaterally revise the survey methodology. See United Farm Workers v. Perdue, No. 1:20-cv-01452-DAD-JLT, 17-18 (E.D. Cal. Oct. 28, 2020) (citing USDA-DOL MOU at 2-6). The possibility of future instability in administration of the FLS, was one reason the Department decided to leverage the OEWS as a secondary wage source for field and livestock workers (combined) job opportunities. See 88 FR at 12769 (Adopting proposal to “use the OEWS to determine a statewide AEWR” for field and livestock workers “in the unanticipated circumstance that the FLS survey becomes unavailable (e.g., suspension of the survey) . . .”).

In this IFR and in light of the determination by USDA to discontinue the FLS based on its own statutory authority, the Department affirms the strengths of using the OEWS as an authoritative source of employment and wage information for determining skill-based AEWRs. For many reasons, the Department has determined that the OEWS remains the most comprehensive, reliable, and stable source of occupational employment and wage information available for determining skill-based AEWRs in the H-2A program. First, as use of the H-2A program has broadened to include on-farm and off-farm employment, the multisector reach of the OEWS survey does a better job of accurately reflecting market wage rates for occupations where workers are primarily employed in jobs outside the field and livestock workers (combined) category, such as first-line supervisors, heavy truck drivers, and construction workers because, as the Department previously concluded, these occupations “inherently include work both in and outside the agricultural sector.” \100\

\100\ Id. at 12770.

Second, unlike the FLS, the capability of the OEWS to consistently aggregate wage estimates at a statewide level will better protect against the potential for depressive wage effects, if any, that may occur due to large numbers of nonimmigrant agricultural workers employed in more concentrated local areas within a state. Specifically, when discussing its preference for using the OEWS because the survey reports wages for each occupational classification at a geographic level above a specific crop activity, the Department concluded that an “AEWR based on an occupational classification that accounts for significantly different job duties but remains broader than a particular crop activity or agricultural activity in a local area may better protect U.S. workers.” \101\ Thus, for many decades, the Department “consistently has set statewide AEWRs rather than substate . . . AEWRs because of the absence of data from which to measure wage depression at the local level” and because use of surveys reporting data at a broader geographic level “immunizes the survey from the effects of any localized wage depression that might exist.” \102\ As previously discussed regarding its sampling structure and methodology, the OEWS is capable of producing employment and wage estimates consistently at the statewide level and for any particular occupation or group of occupations, which more precisely estimates the wages paid of U.S. workers similarly employed in that state. Conversely, the FLS cannot report wage estimates for each state, except for California, Florida, and Hawaii, and cannot report wage estimates at the state or regional levels for any occupation outside the field and livestock worker (combined) category of occupations. Therefore, the Department concludes that the more precise statewide data available from the OEWS, whether for a particular occupation or group of occupations, better protects the wages of U.S. workers similarly employed where employers may be seeking to employ H-2A workers in that same occupation(s) within the state.

\101\ 84 FR at 36182 (citation omitted).

\102\ 75 FR at 6895.

Third, the OEWS methodology incorporates a much larger sample size of establishments (1.1 million total non-farm establishments) \103\ and generates higher survey response rates (approximately 65 percent),\104\ as compared to smaller sample size (estimated 16,000 total farm establishments) and lower response rates (approximately 44 percent) of the FLS, which provides greater confidence to the Department in the accuracy of the employment and wage estimates produced by the BLS. Fourth, due to its larger sample size and time series panel methodology, the OEWS has the capability of consistently providing employment and wage estimates by SOC code at a state, regional, and national level. Conversely, as mentioned previously, the FLS can only produce

employment and wage estimates by SOC code at a national level due to its significantly reduced sample size and methodology.\105\ Fifth, due to its robust capacity to produce estimates at broad geographic levels spanning a three-year aggregated timeseries collection, the OEWS data are more reliable, representative, and generally experience lower rates of volatility on a year-over-year basis. While the FLS calculates annual findings from quarterly estimates of data collected during one calendar year cycle, each set of OEWS estimates used across other nonimmigrant and immigration visa programs is calculated from six panels of survey data collected over three years, which tends to moderate year-over-year fluctuations in wage rates.

\103\ Id. at 6, 10.

\104\ Handwerker at 6.

\105\ Id. (Noting the FLS was expanded briefly from 2018-2020 to provide occupation-specific wages at a smaller geographic scale and with expanded sample sizes, but USDA reverted to smaller sample sizes and the prior survey scope after suspending the survey entirely in 2020).

Sixth, unlike the FLS, the OEWS survey produces wage estimates based on straight-time, gross pay, and excludes monetary compensation related to overtime pay, on-call pay, severance pay, shift differentials, year-end and other nonproduction bonuses, and employer costs for supplementary benefits (e.g., uniform, tuition). As multiple states in recent years have enacted legislation requiring overtime pay for agricultural workers, employers have expressed concerns that the FLS is vulnerable to producing artificially high average wages because overtime pay and other forms of premium pay are not being excluded from the collection of gross compensation data from farm establishments. Thus, by adopting the OEWS as the wage source for estimating skill- based AEWRs, the Department is seeking to address this concern while achieving greater consistency in the computation of average hourly wage rates in the H-2A program with those already used in temporary and permanent visa programs where overtime pay is excluded from determining prevailing wages.

And finally, although it does not primarily survey farm establishments, farm labor contractors, which are covered by the OEWS, are increasingly utilized by agricultural employers, to employ workers to provide agricultural labor or services similar to that of workers employed by fixed-site agricultural employers thus making use of the OEWS data important to determining representative, market-based wages. Agricultural labor contractor employment has grown in recent years \106\ and H-2 labor contractors (H-2ALCs) represent an increasing share of the H-2A worker positions certified by the Department.\107\ For example, from FY 2020 through FY 2023, the Government Accountability Office (GAO) found that H-2ALCs “accounted for 42 percent of the jobs approved during the period” in the H-2A program \108\ and the USDA found that “the FLC share of H-2A workers increased from 15 percent to 42 percent from FY 2010 to FY 2019.” \109\ FLC employment is increasingly common in specific sectors, such as the vegetable crop sector (40%), and fruit and nut crop sector (57%) \110\ and data shows “vegetable and melon farming or fruit and tree nut farming accounted for most of the approved H-2A applications,” according to GAO and USDA research.\111\ FLCs may also be more commonly employed in support of smaller farms, as “smaller farms turn to FLCs because H-2A visa programs can be difficult to navigate” for these employers.\112\ Based on a review of the Department's more recent public H-2A labor certification records for FY 2024 and FY 2025, H-2ALCs continued to account for a significant percent of all H-2A jobs certified as more than 163,200 of the 379,300 jobs, or 43 percent of the total, were approved during FY 2024 for H-2ALCs. In addition, from October 1, 2024, through June 30, 2025, more than 134,200 of the 317,400 H-2A jobs certified, or 42 percent of the total, were approved during FY 2025 for H-2ALCs.\113\ In comparison, the now-discontinued FLS suffered from the flaw of not surveying at all the large proportion of agricultural labor that is supplied by FLCs.\114\

\106\ Farm Labor (Jan. 8, 2025). USDA (Noting From 2013 to 2023, agricultural employment increased most “in crop support services (which added about 17,400 jobs, a 6 percent increase). Available at: https://www.ers.usda.gov/topics/farm-economy/farm-labor; NAWS Data Finder: U.S. Crop Workers' Employer Type, All Available Years. U.S. DOL, National Agricultural Workers Survey (indicating the total share of FLC employment in agricultural recently has risen from 14.99% in the 2014-18 period to 16.95% in the 2019-22 period). Available at: https://www.dol.gov/agencies/eta/national-agricultural-workers-survey/naws-data-table/naws-data-finder-results; 88 FR 12760, n. 71 (citations omitted) (noting the USDA Economic Research Service (ERS) reported that H-2ALCs (also known as Farm Labor Contractors (FLC)) have become the dominant employer type in the vegetable and melon sector--among the most labor-intensive agricultural sectors in the United States. Specifically, USDA ERS noted that “the number of certifications obtained by both individual employers and FLCs increased every year between 2011 and 2019; however, the number of certifications obtained by FLCs increased faster, which led contractors to overtake individual employers in 2016. The share of certifications obtained by FLCs steadily increased from 17 percent in 2011 to its maximum of 57 percent in 2018, decreasing slightly to 53 percent in both share and number in 2019.” Noting also that the Department's own review of H- 2A applications covering all agricultural sectors certified by OFLC during the most recent 3 fiscal years covering October 1, 2019, through September 1, 2022, indicated the proportion of H-2A worker positions certified for employers operating as H-2ALCs increased from 36 percent in FY 2020 to more than 43 percent in FY 2022. In FY 2020, of the 275,430 worker positions certified nationally, 99,505 (or 36.1 percent) were issued to H-2ALCs. From October 1, 2021, through September 1, 2022, for FY 2022, of the 352,103 worker positions certified nationally, 151,706 (or 43.1 percent) were issued to employers operating as H-2ALCs).

\107\ 88 FR 12760, n. 60 (Noting, for example, the proportion of all H-2A worker positions certified by the Department for employment in non-range occupations with employers qualifying as H-2A Labor Contractors (i.e., farm labor contractors) has increased significantly from 33.1 percent in FY 2016 (54,787 positions out of 165,741 positions) to 42.6 percent in FY 2021 (135,314 positions out of 317,619 total positions) and 43.1 percent through August FY 2022 (151,439 positions out of 351,268 total positions)).

\108\ H-2A Visa Program: Agencies Should Take Additional Steps to Improve Oversight and Enforcement (Nov. 2024), 9. U.S. Government Accountability Office. GAO-25-106389. Available at: https://www.gao.gov/assets/gao-25-106389.pdf.

\109\ Id. (citing Examining the Growth in Seasonal Agricultural H-2A Labor, Economic Information Bulletin No. 226, U.S. Department of Agriculture, Economic Research Service (Washington, DC: Aug. 2021)).

\110\ See Findings from the National Agricultural Workers Survey (NAWS) 2021-2022: A Demographic Employment Profile of United States Crop Workers (Sept. 2023), 2, 26 (Finding H-2ALC employees now constitute 22 percent of all crop workers, 28% of all crop harvesters, 40% of vegetable crop sector workers, and 57% of fruit and nut crop workers). Available at: https://www.dol.gov/sites/dolgov/files/ETA/naws/pdfs/NAWS%20Research%20Report%2017.pdf.

\111\ H-2A Visa Program: Agencies Should Take Additional Steps to Improve Oversight and Enforcement, 10 (Nov. 2024). U.S. GAO, GAO- 25-106389. Available at: https://www.gao.gov/assets/gao-25-106389.pdf; Castillo, et al. Examining the Growth in Seasonal Agricultural H-2A Labor (Aug. 2021), EIB-226, USDA, ERS (Finding the vegetable and melon sector is “the largest H-2A employer . . . since 2016,” and “FLC prominence” in this sector is due to “contract labor play[ing] an important role in production of these crops.” The report also found “fruit and tree nuts led other sectors . . . (behind vegetable and melons) in number of H-2A certifications . . . with an annual rate of growth of 20 percent . . .” and noted “FLCs are the dominant H-2A employers in fruit and tree nuts.”). Available at: https://ers.usda.gov/sites/default/files/_laserfiche/publications/102015/EIB-226.pdf?v=97406.

\112\ Id.

\113\ Based on a review of public H-2A labor certification disclosure records certified by the Department and available on the OFLC Performance Data website for FYs 2024 and 2025, Quarter 3, at https://www.dol.gov/agencies/eta/foreign-labor/performance.

\114\ See e.g., 90 FR at 42561.

The Department's concern expressed in prior rulemaking that the OEWS, as currently administered, may not survey a sufficient cross- section of agricultural workers to represent market-based wages,\115\ is being addressed outside this IFR, as the Department will ensure long-term stability in determining the

AEWRs using a more comprehensive OEWS data set based on a more robust, accurate, and reliable set of wage data from farm establishments. Specifically, the Department is working collaboratively with USDA, due to its expertise in identifying farm establishments, to initiate expansion of the OEWS survey universe of employers in FY 2026 by incorporating employers in key agricultural industries, such as crop and animal production sectors, into its semi-annual sampling methodology and model estimation procedures. As the semi-annual panels begin to incorporate employment and wage estimates from these farm establishments on and after May 2026, the OEWS survey will increasingly strengthen its ability to provide more accurate and reliable information to the Department and the general public on the employment and average wages paid to U.S. workers similarly employed in agricultural related occupations. Taking into consideration the decision to establish more precise skill-based AEWRs for each state, the strengths of the OEWS to produce occupation-specific wages that accounts for wage differentials for every state, and planned expansion of the survey to incorporate farm establishment data into its time series methodology, the Department concludes that the resulting employment and wage estimates will better reflect wages paid to U.S. workers performing agricultural related labor or services across all types of establishments and covering a broad geographic area at the state level, leading ultimately to more comprehensive and accurate wage data that cannot be reported by the FLS.

\115\ See e.g., 75 FR at 6899.

As previously discussed, Congress has delegated broad discretion to the Department in determining the sources and methods that best allows it to meet its statutory mandate, while striking a reasonable balance between the statute's competing goals of providing employers with an adequate supply of legal agricultural labor and protecting the wages and working conditions of workers in the United States similarly employed. For all the reasons previously stated, the Department concludes that the policy decision to use the unique strengths of the OEWS for establishing skill-based AEWRs, which are not available through the FLS, and inclusive of its planned expansion to collect employment and wage information from farm establishments, will provide one comprehensive source of more accurate and representative market- based wages, based on samples of employers and workers covering all agricultural related occupations and types of establishments, thereby better approximating the actual wages of U.S. workers similarly employed based on the duties and qualifications associated with the agricultural work being performed.

B. The Department Will Determine the AEWRs at Two Skill Levels To Better Reflect the Average Wages Paid to U.S. Workers Similarly Employed

As discussed in detail below, the Department will determine the AEWRs using the best available data from the OEWS that reasonably reflects labor market dynamics and most closely approximates the average wages earned by U.S. workers performing similar work and possessing the same or substantially similar qualifications (e.g., job requirements, experience, tools) as those employers expect of H-2A workers.

Under revisions adopted in this IFR at 20 CFR 655.120(b)(1)(i) and (ii) and (b)(2), the Department will determine the AEWRs for H-2A job opportunities using the annual average hourly gross wage in the U.S. state or territory according to two skill or qualification levels: Skill Level I (Entry-Level) and Skill Level II (Experience-Level). A Skill Level I AEWR is associated with job offers containing qualifications commensurate with entry-level positions where workers need no formal education or specialized training credentials. In addition, employers typically require no or very little work-related experience under the Occupational Information Network (O*NET) \116\ system (e.g., up to 2 months of related work experience cultivating diversified vegetable crops) or, alternatively, may require a short demonstration (e.g., several weeks of on-the-job training) on how to perform the work by a more experienced employee, lasting anywhere from a few days to a few weeks. Employers seeking employees for this level of position require them to follow instructions from a supervisor or team leader on the employer's agricultural methods and practices, use common equipment and tools to successfully perform the work, and help others as part of a work crew. Work performed by these employees is closely monitored, tracked, and assessed for quality, accuracy, and production results. In accordance with new paragraph (b)(2)(i), a Skill Level I AEWR will be computed as the average hourly gross wage paid to the lower one-third of all workers in the five SOC codes comprising the field and livestock workers (combined) category or, for occupations outside of that category, the average hourly gross wage paid to the lower one-third of all workers in the specific SOC code assigned to the employer's job opportunity. A Skill-Level I AEWR is computed at the equivalent of the 17th percentile of the occupational wage distribution, which is similar to the skill-based prevailing wages for other nonimmigrant and immigrant visa programs administered by the Department.

\116\ The O*NET system was created for the general public to provide broad access to the O*NET database of occupational information. O*NET is a database of information on skills, abilities, knowledges, work activities, and interests associated across more than 820 occupational classifications based on the 2018 version of the Standard Occupational Classification system. This information can be used to facilitate career exploration, vocational counseling, and a variety of human resources functions, such as developing job orders and position descriptions and aligning training with current workplace needs. Additional information on the O*NET system is available at https://www.onetonline.org (last visited August 21, 2025).

A Skill Level II AEWR is associated with job offers containing qualifications commensurate with experience-level or qualified employees who possess, either through education, training, or experience, demonstrated skills or knowledge to perform the work covering the SOC code(s). Depending on the occupational classification, these positions may normally require some formal education or training credentials or certificates. In addition, employers typically require work-related experience at a level that is normal for the occupation under the O*NET system (e.g., 3 months of related work experience harvesting apples) and generally do not require a short demonstration on how to perform the work by a more experienced employee. Employers who hire employees into this level of position may also expect workers to perform moderately complex tasks (e.g., harvesting “first pick” apples for firmness, color, and placement on the tree) and follow instructions from a supervisor or team leader on the employer's agricultural methods and practices, use common equipment and tools to successfully perform the work, and help others as part of a work crew. Work performed by these employees is not as closely monitored as employees in Skill Level I, but production may still require some level of tracking and assessment of quality when immediate delivery is to market. In accordance with new paragraph (b)(2)(ii), a Skill Level II AEWR will be computed as average hourly gross wage paid to all workers in the five SOC codes comprising the field and livestock

workers (combined) category or, for occupations outside of that category, the average hourly gross wage paid to all workers in the specific SOC code assigned to the employer's job opportunity. A Skill- Level II AEWR is computed at the equivalent of the 50th percentile of the occupational wage distribution, which is similar to the skill-based prevailing wages for other nonimmigrant and immigrant visa programs administered by the Department.

The description and application of each skill level adopted in this IFR is based on the totality of the circumstances of an employer's job offer and designed to be consistent with skill-based levels required under the INA and used by the Department in its prevailing wage determinations for employers seeking to hire H-1B temporary nonimmigrant workers and permanent immigrant workers, as discussed further below.\117\ In other words, if this same agricultural employer sought labor certification from the Department to sponsor a foreign worker for permanent year round work to support its farming operation, the Department would conduct a similar assessment of the qualifications contained in the employer's job offer and assign a market-based wage that best approximates the average wage paid to U.S. workers similarly employed in the geographic area. The Department concludes employers seeking temporary nonimmigrant workers under the H-2A visa classification should receive an AEWR determination that also takes into account the qualifications of the employer's job offer to better effectuate the requirement to, protect the wages of U.S. workers similarly employed and more closely align the wage standard in the H-2A program with the wage standards in other employment-based immigration programs which use skill-based wage levels.\118\

\117\ See Section 212(p)(4) of the INA stating, in pertinent part, that “[w]here the Secretary of Labor uses, or makes available to employers, a governmental survey to determine the prevailing wage, such survey shall provide at least 4 levels of wages commensurate with experience, education, and the level of supervision.” Although this provision was enacted in the context of the H-1B temporary nonagricultural visa classification, and also applies to the PERM immigrant visa program, it is the only paragraph in Section 212(p) that does not reference any specific immigration programs to which it applies, and there is no legislative history indicating that it was meant to apply only to the H-1B program. For more detailed information regarding the four skill levels utilized by the Department, please see Employment and Training Administration Prevailing Wage Determination Policy Guidance Nonagricultural Immigration Programs, Revised November 2009 located at https://www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/NPWHC_Guidance_Revised_11_2009.pdf.

\118\ Under 8 U.S.C. 1182(a)(5)(A) of the Immigration and Nationality Act (INA or Act), certain aliens may not obtain immigrant visas for entrance into the United States in order to engage in permanent employment unless the Secretary of Labor has first certified to the Secretary of State and to the Secretary of Homeland Security that: (1) There are not sufficient United States workers who are able, willing, qualified and available at the time of application for a visa and admission into the United States and at the place where the alien is to perform the work; and (2) The employment of the alien will not adversely affect the wages and working conditions of United States workers similarly employed. Additionally, under 8 U.S.C. 1182(n)(1), no alien may be admitted or provided status as an H-1B nonimmigrant in an occupational classification unless the employer has filed with the Secretary of Labor an application stating the following: (A) The employer--(i) is offering and will offer during the period of authorized employment to aliens admitted or provided status as an H-1B nonimmigrant wages that are at least (I) the actual wage level paid by the employer to all other individuals with similar experience and qualifications for the specific employment in question, or (II) the prevailing wage level for the occupational classification in the area of employment, whichever is greater, based on the best information available as of the time of filing the application, and (ii) will provide working conditions for such a nonimmigrant that will not adversely affect the working conditions of workers similarly employed.

For the reasons discussed below, and after the appropriate SOC code(s) are assigned to the job opportunity, the State Workforce Agency (SWA) and OFLC Certifying Officer (CO) will make an AEWR determination for the U.S. state or territory using one of two skill levels based on a comparison of the qualifications (e.g., education, and training) contained in the employer's job offer that it expects employees to possess for acceptable work performance. Although the vast majority of certified H-2A job opportunities are concentrated in the five field and livestock worker (combined) occupational category, the market for agricultural labor or services is far more diversified and covers a broad spectrum of occupations with differing degrees of job qualifications that generate different levels of wage compensation. Despite a common stereotype that agricultural jobs are “unskilled” and typically do not require formal education or training credentials or certificates like the specialty occupations in the H-1B temporary nonimmigrant and PERM immigrant program, the Department has previously noted, as far back as 2008, that the “farm labor market is not a monolithic entity,” but is comprised of “a number of occupations and skills” distributed across “a matrix of markets” and a “spectrum of occupations, skill or experience levels . . .” \119\ In fact, based on a review of H-2A labor certification records for FY 2024, the Department issued labor certifications across more than 60 different SOC codes containing a wide array of qualifications ranging from crop and nursery work to supervisors, animal trainers, equipment mechanics and technicians, heavy truck drivers, and commercial pilots.

\119\ 73 FR at 8550.

The methodology adopted in this IFR also addresses some of the more substantial concerns expressed by users of the H-2A program-- agricultural employers and associations--who have long contended that the AEWR cannot be an accurate reflection of market wages paid to similarly employed workers if the Department fails to differentiate wage data based on the “level of skill or experience required for a position.” \120\ Many stakeholders have urged the Department to adopt a tiered wage system, accounting for “experience, skill, responsibility, and difficulty variations within each occupation,” similar to the system mandated by Congress in the H-1B nonimmigrant program.\121\ The Department agrees and acknowledges that it is generally accepted that differences in wages among workers within a given occupation can be attributed to a number of characteristics and qualifications such as education, work experience, complexity of tasks, training, and requirements like licensure, as well as characteristics like union v. non-union and full-time v. part-time or temporary.\122\ While it is administratively infeasible to precisely

pinpoint every reason that workers within a given occupation receive significantly different pay, the Department concludes that the existence of wage differences can be attributed, to a large degree, to these characteristics and qualifications possessed by incumbent workers performing work within a given occupation. This is supported by the Department's extensive experience assessing the duties and qualifications of job opportunities, including those from employers in the agricultural sector, applying for labor certification to employ foreign nationals temporarily under the H-1B visa classification or in permanent employment in the United States. Specifically, for more than 20 years, the Department has used one of four skill-based wage levels for a given occupational classification based on a comparison of the qualifications contained in the employer's permanent or temporary H-1B job offer related to the occupational duties or tasks, knowledge, skills, and specific vocational preparation (i.e., education, training, and experience) generally required of prospective applicants for acceptable performance in the position. A detailed description of the tasks, knowledge, and skills in the employer's job opportunity, including level of complexity, judgement, supervision and understanding required to perform the duties, help determine the appropriate skill- based prevailing wage for these job opportunities. Further, information contained in the O*NET related to education, and training provides guidance in determining whether the job offer is for an entry-level, qualified, experienced, or fully competent employees; each of which corresponds to higher skill-based wage levels as minimum qualifications in the employer's job offer increases.

\120\ 75 FR at 6899.

\121\ Id. at 6900.

\122\ See, e.g., Introducing Modeled Wage Estimates by Grouped Work Levels, U.S. DOL, BLS (noting “wages tend to increase along with the progression in work level” necessitating information about “differences in pay for entry, intermediate, and experienced work levels.”). Available at: https://www.bls.gov/opub/mlr/2022/article/introducing-modeled-wage-estimates-by-grouped-work-levels.htm; How Much Could I Be Earning? Using Occupational Employment and Wage Statistics Data During Salary Negotiations, BLS (“Where an individual's wage should fall within the national distribution depends on a number of factors. Of course, experience and education are factors.”). Available at: https://www.bls.gov/oes/earnings.pdf; Modeled Wage Estimates for Entry, Intermediate, and Experienced Grouped Work Levels, BLS (Explaining use of wage modeling to group “occupations like food preparation workers and nursing assistants” into two wage levels corresponding with “entry and experienced levels.”). Available at: https://www.bls.gov/mwe/factsheets/grouped-work-levels-factsheet.htm; Torpey, Elka, Same Occupation, Different Pay: How Wages Vary (2015), BLS (“Large differences in wages may be the result of a combination of factors, such as industry of employment, geographic location, and worker skill.”) Available at: https://www.bls.gov/careeroutlook/2015/article/wage-differences.htm; Learn More, Earn More: Education Leads to Higher Wages, Lower Unemployment, BLS. Available at: https://www.bls.gov/careeroutlook/2020/data-on-display/education-pays.htm.

Additionally, the BLS has noted that work experience and training contributes to wage differentials, with “experienced workers usually earn[ing] more than beginners,” and recent data suggests work experience may be a significant factor in within-occupation wage differentials in agriculture.\123\ Wages may also differ within an occupation based on required skills and the wage may increase where there is a requirement for “in-demand skills . . .” \124\ Additionally, workers who “hold professional certification or licensure may earn more than other workers in the same occupation . . .” \125\ Within a particular occupation, and even with the same employer, wages may also differ based on complexity of tasks and level of responsibility.\126\ Even in lesser skilled occupations, the Department believes these factors can explain much of the identified within-occupation wage differentials.\127\

\123\ Torpey (2015) (“Large differences in wages may be the result of a combination of factors, such as industry of employment, geographic location, and worker skill.”). Available at: https://www.bls.gov/careeroutlook/2015/article/wage-differences.htm; Findings from the National Agricultural Workers Survey (NAWS) 2021- 2022: A Demographic Employment Profile of United States Crop Workers (Sept. 2023), 28. U.S. DOL-ETA (A survey of agricultural workers indicated “[h]ourly wages increased with respondents' number of years working for their current employer” and varied from “$13.72 per hour” for workers with 1-2 years of experience in the job to “$15.56 per hour” for workers with 11 or more years in the job.). Available at: https://www.dol.gov/sites/dolgov/files/ETA/naws/pdfs/NAWS%20Research%20Report%2017.pdf; Sullivan, Paul, Empirical Evidence on Occupation and Industry Specific Human Capital (Jun. 2010), Labour Economics, 17:3 (In “occupations such as craftsmen . . . workers realize a 14% increase in wages after five years of occupation specific experience . . . sales workers . . . realize large wage gains as they accumulate general work experience.”). Available at: https://www.sciencedirect.com/science/article/abs/pii/S0927537109001286?via%3Dihub/.

\124\ Id.; Levenson, Alec & Zoghi, Cindy, The Strength of Occupation Indicators as a Proxy for Skill (Mar. 2007), 2, 8. BLS (“[T]here is considerable within occupation variation in skills . . . , there are differences among workers in their ability to perform tasks of high complexity, and there are differences among jobs in the level of task complexity and responsibility bestowed on the worker.”). Available at: https://www.bls.gov/osmr/research-papers/2007/pdf/ec070030.pdf.

\125\ Id.

\126\ See, e.g., Torpey (2015)(Stating “[j]obs for a specific occupation often have similar position descriptions, but individual tasks may vary” and “jobs involving more complex tasks or greater responsibility may have higher wages than those that don't . . .”); Autor, David H. and Handel, Michael J. (2013), Putting Tasks to the Test: Human Capital, Job Tasks and Wages, National Bureau of Economic Research (“Job tasks . . . vary substantially within and between occupations, are significantly related to workers' characteristics, and are robustly predictive of wage differentials both between occupations and among workers in the same occupation.”). Available at: https://ideas.repec.org/a/ucp/jlabec/doi10.1086-669332.html.

\127\ National Compensation Survey (May 2013), 60. BLS (Stating job levels for blue collar jobs may increase progressively based on factors like required knowledge of “rules, materials, processes, procedures, operations, and tools necessary” to perform tasks like “fabricat[ing], install[ing], repair[ing], maintain[ing] . . .” equipment and should be increased most significantly when the job requires, for example, knowledge of complex procedures and methods “gained through job experience to permit independent performance of nonstandard assignments . . .” or requires “specialized training or experience . . .”). Available at: https://www.bls.gov/mwe/factsheets/ncs-leveling-guide-for-evaluating-your-firms-jobs-and-pay.pdf.

Within the agriculture sector, the amount of time spent working on a farm and the number of years of experience performing agricultural work have a positive correlation to the average wages or earnings received.\128\ Based on a review of the evidence available, the Department concludes that wage differentials within a given agricultural occupation do exist, and that varying degrees of work- related experience among employed U.S. agricultural workers are reflected by differences in wages paid to such workers by employers. For example, the most recent data available from the NAWS for 2021-2022 indicates that “[h]ourly wages increased with respondents' [crop workers] number of years working for their current employer.” The report noted that workers “who had been with their current employer 1 to 2 years earned an average of $13.72 per hour, those working for their current employer 3 to 5 years earned an average of $14.53 per hour, and those with 6 to 10 years earned an average of $14.81 per hour . . .” and workers “who had worked for their current employer 11 years or more earned the highest hourly wage, an average of $15.56 per hour.” \129\ Additionally, the report indicates that 23 percent of workers had worked at least 11 or more years with their current employer and the average number of years worked with the current employer was 8 years.\130\

\128\ Findings from the National Agricultural Workers Survey (NAWS) 2021-2022: A Demographic Employment Profile of United States Crop Workers (Sept. 2023), at 28. U.S. DOL ETA. Available at: https://www.dol.gov/sites/dolgov/files/ETA/naws/pdfs/NAWS%20Research%20Report%2017.pdf.

\129\ Id. at 28.

\130\ Id. at 32.

This suggests that relying on unsegmented aggregate OEWS data (i.e., the arithmetic mean of all hired workers in a given occupational wage distribution) would tend to overstate wages for similarly employed American agricultural workers with less experience and understate wages for similarly employed American agricultural workers with more experience. Within the OEWS data set that covers a far larger sample size of employer establishments than both the NAWS and FLS discussed previously, BLS publishes an occupational profile containing the average wage paid to all workers in the SOC code and shows a distribution of wages in percentiles, which provides information on the spread of wages based on the percentage of workers earning at or below a given percentile. The wages presented at different points within an occupational wage distribution positively correlate to important worker characteristics such as education and experience. As the BLS describes, “someone new to the field may expect wages near the 10th or 25th

percentile, whereas those with more experience and education could expect wages near the 75th or 90th percentile.” \131\ To further illustrate the point that material wage differentials exist within agricultural occupations, the table below displays the national average OEWS-based hourly wage rates associated with the top 10 SOC codes typically certified in the H-2A program at the 10th, 25th, 50th, and 75th percentiles in the occupational wage distribution.

\131\ See How Much Could I Be Earning? Using Occupational Employment and Wage Statistics Data During Salary Negotiations, BLS, https://www.bls.gov/oes/earnings.pdf.

National average hourly wage distribution, May 2024

Occupation title (SOC code) 10th 25th 50th 75th

Percentile Percentile Percentile Percentile

Farmworkers and Laborers, Crop, Nursery, and $15.51 $16.48 $17.16 $18.73

Greenhouse (45-2092)........................... Agricultural Equipment Operators (45-2091)...... 15.02 17.62 20.47 23.41 Farmworkers, Ranch, and Aquacultural Animals (45- 13.03 15.01 17.38 21.29

2093).......................................... Heavy Truck and Tractor-Trailer Drivers (53- 18.58 22.71 27.62 31.50

3032).......................................... Construction Laborers (47-2061)................. 16.44 18.32 22.47 28.32 Shuttle Drivers and Chauffeurs (53-3053)........ 13.21 15.13 17.63 21.40 Graders and Sorters, Agricultural Products (45- 14.66 16.13 17.03 18.28

2041).......................................... Helpers--Carpenters (47-3012)................... 15.16 17.24 20.00 22.49 Helpers--Installation, Maintenance and Repair 13.83 16.23 18.68 22.40

Workers (49-9098).............................. Packers and Packagers, Hand (53-7064)........... 13.01 15.13 17.10 19.69

Upon review, the data in the table clearly demonstrates that material wage differentials are present in both common higher-skilled agricultural SOC codes, such as heavy truck and tractor-trailer drivers and first-line supervisors of farm workers, and the relatively lower- skilled occupations that make up the five most common field and livestock workers (combined) category of occupations, which includes Farmworkers and Laborers, Crop, Nursery and Greenhouse Workers (45- 2092), Farmworkers, Farm, Ranch, and Aquacultural Animals (45-2093), Agricultural Equipment Operators (45-2091), Packers and Packagers, Hand (53-7064), and Graders and Sorters, Agricultural Products (45-2041). For example, the wage estimates for heavy truck drivers (SOC 53-3032) range from $22.71 per hour at the 25th percentile to $27.62 per hour at the 50th percentile, or mean, of all workers in the occupational distribution. The wage differential is significant at more than $4.91 per hour between these two wage measurement points in the occupational wage distribution. In the field and livestock worker (combined) category of occupations, the wage data at these same percentiles indicates more narrow wage differentials for crop farmworker occupation (45-2092) ranging from $16.48 to $17.16 per hour, with a differential of $0.68 per hour; wages for agricultural equipment operators (45-2091) ranging from $17.62 to $20.47, with a differential of $2.85 per hour; and wages for ranch and aquacultural farmworkers (45-2093) ranging from $15.01 to $17.38 per hour, with a differential of $2.37 per hour.

The Department also notes that evidence exists that wage differentials are present at a statewide geographic level and even for the most common occupation certified in the H-2A program, Farmworkers and Laborers, Crop, Nursery, and Greenhouse (45-2092). As an example, the table below displays the statewide average OEWS-based hourly wage rates associated with SOC code 45-2092 for the top 10 states of certified employment in the H-2A program at the 10th, 25th, 50th, and 75th percentiles in the occupational wage distribution.

Statewide average hourly wage distribution farmworkers and

laborers, crop, nursery, and greenhouse (45-2092)

U.S. State of certified employment ---------------------------------------------------------------

10th 25th 50th 75th

Percentile Percentile Percentile Percentile

Florida......................................... $12.64 $13.36 $14.32 $16.19 Georgia......................................... 12.00 13.37 13.94 17.96 California...................................... 16.34 16.72 17.20 18.63 Washington...................................... 16.44 16.67 17.83 21.00 North Carolina.................................. 13.28 14.44 16.20 17.31 Michigan........................................ 13.94 15.58 17.52 18.80 Louisiana....................................... 10.96 12.86 14.50 16.06 Texas........................................... 11.10 12.97 15.28 16.76 Arizona......................................... 14.84 16.21 16.43 17.45 New York........................................ 15.78 17.20 18.93 21.98

Upon review, the data in the table above also shows that wage differentials are present in the most common agricultural occupation certified under the H-2A program. Across the top 10 states of intended employment for H-2A workers, the average wage differential between the 25th and 50th percentiles for the Farmworkers and Laborers, Crop, Nursery, and Greenhouse occupation is approximately $1.28 per hour. These wage differentials are more salient in most, but not all, of the top 10 states. For example, the wage estimates for this occupation in Texas range from $12.97 per hour at the 25th percentile to $15.28 per hour at the 50th percentile, or mean, of all workers in the occupational distribution. The wage differential is significant at more than $2.31 per hour between these two wage measurement

points in the occupational wage distribution. In addition, a wage differential of more than $1.00 per hour is also present for workers performing similar agricultural work within the states of Washington, North Carolina, Michigan, Louisiana, and New York. However, Arizona shows a narrower wage differential of $0.22 per hour where wage estimates showed $16.21 per hour at the 25th percentile and $16.43 per hour at the 50th percentile or mean.

Thus, based on the broad distribution of wages paid to U.S. workers similarly employed across the most common occupations and geographic areas certified under the H-2A program, the Department can reasonably conclude that material wage differences within agricultural occupations exist and are positively correlated with differences in the characteristics and qualifications of incumbent workers employed by employers in these occupations. Accordingly, continued use of a single average hourly wage for all workers for a given occupation is not appropriate when the employer's need for the agricultural labor or services to be performed does not require qualifications commensurate with the average of all incumbent workers employed who may possess eight or more years of experience. In other words, imposing a single AEWR computed based on all workers paid within the occupation, regardless of the qualifications contained in an employer's job offer, is not sufficiently precise to reflect market-based wages paid to U.S. workers similarly employed, resulting in a wage floor that is either artificially too high or too low in relation to the nature of the employer's qualifications. As previously discussed, due to its sampling size and methodology that allows for collecting employment and gross wages paid to each worker in each occupation during the reference period, the OEWS can consistently report more precise wage estimates for any occupation-specific wage distribution to approximate wage differentials paid to U.S. workers similarly employed in a particular occupation and state, which the FLS cannot report at any level.

When AEWRs are artificially set too far above market conditions in relation to the agricultural duties and qualifications required by employers, the resulting increases in production costs can harm U.S. workers similarly employed as employers scale down or, worse yet, shut down operations and become “priced out” of participating in the H-2A program. Conversely, when the AEWRs are set artificially below market conditions in relation to the minimum job qualifications required by employers, U.S. workers similarly employed may be harmed by employers choosing not to hire qualified and eligible U.S. workers in favor of H- 2A workers, which may lead to requiring that U.S. workers accept below- market wages as a condition of employment.

The Department notes that the policy rationale for adopting two skill levels is to approximate, as accurately as possible and using the best available information, the average of wages paid to U.S. workers similarly employed in the occupation and geographic area based on the qualifications contained in the employer's job offer for which the services of H-2A workers are being requested for temporary agricultural labor certification. When the average wages better reflect these market conditions, they do not represent below-average AEWRs. Rather, these AEWRs reflect the actual average wages that are prevailing in the occupation and geographic area for that particular kind of job. The Department's use of a single AEWR for work performed within a particular occupation or category of occupations, regardless of qualifications, fails to account for the fact that individual jobs within a broad occupational classification require relatively more or less experience and skill to perform than others and may adversely affect U.S. workers who are similarly employed performing such jobs.

The Department also concludes that adoption of this AEWR methodology will address concerns raised in the recently settled Teche Vermilion litigation regarding the 2023 AEWR Final Rule's methodology under 8 U.S.C. 1188(a)(1)(B) and the lack of clarity or nuance regarding the way the Department determines whether a “H-2A job . . . ha[s] sufficient common characteristics with a non-H-2A job” such that “the wages and working conditions of one job impact the wages and working conditions of the other.” \132\ As previously explained, the Court noted the INA “does not require that DOL base the AEWR on average wage rates for jobs or occupations that are the same or identical,” but does require “that the jobs be sufficiently comparable that the wage rates and working conditions of the H-2A job at issue can adversely impact the wage rates and working conditions of domestic workers employed in the non-H-2A job,” thereby assuring the AEWR “correlate[es] to whether the employment of an H-2A worker adverse[ly] impacts similarly employed domestic workers.” \133\ In considering whether workers are similarly employed when establishing AEWRs, the court concluded the Department should consider factors like duration of time spent in duties, the work environment, the totality of required tasks, and required credentials to determine whether the jobs have “sufficient common characteristics” or if “the nature of the work, qualifications, and experience required for jobs performed by two groups of workers are sufficiently different . . .” \134\ The Court issued an injunction in that case because it determined that plaintiffs were likely to succeed on their claim that the Department exceeded its statutory authority because it failed to explain how non-agricultural heavy truck drivers and agricultural sugar cane haulers in Louisiana are similarly employed. Specifically, the court thought that the Department failed to consider whether there are “material difference[s] between the `work performed, skills, education, training, and credentials' between the jobs . . .” \135\ and whether “the nature of the work, qualifications, and experience required for jobs performed by two groups of workers are sufficiently different,” such that “the wages and working conditions of one group of workers is not likely to adversely affect the wages and working conditions of the other group of workers.” \136\

\132\ 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).

\133\ Id. at 724, 729.

\134\ Id.

\135\ Id. at 729.

\136\ Id. at 724.

Although the OEWS “captures no information about actual skills or responsibilities of the workers whose wages are being reported . . .” the Department has extensive experience issuing skill-based wage levels by evaluating the employer's job opportunity in relation to detailed occupational information contained in the O*NET system as well as educational requirements in sources like the BLS, with the generally accepted principle that workers in jobs possessing relatively higher qualifications tend to earn higher wages than workers in those same jobs that possess lower levels of qualifications.\137\ The AEWR methodology adopted in this IFR is administratively similar to the current prevailing wage determination methodology utilized in the H-1B

temporary nonimmigrant and PERM immigrant visa programs, where an assessment of the employer's job duties, qualifications, and nature of the work are the primary determinants of a four-tiered wage level determination. The use of a four-tiered wage level structure that is currently in effect for these visa programs is mandated by Congress in the H-1B Visa Reform Act of 2004.\138\ Both Congress and the Department's regulations and guidance require the use of four wage levels that most reasonably reflect the qualifications (i.e., education, experience, and level of supervision) contained in the employer's job offer.

\137\ See 76 FR at 3453.

\138\ Consolidated Appropriations Act, 2005, Public Law 108-447, div. J, tit. IV, 423; 118 Stat. 2809 (Dec. 8, 2004), (Mandating that “[w]here the Secretary of Labor uses, or makes available to employers, a governmental survey to determine the prevailing wage, such survey shall provide at least 4 levels of wages commensurate with experience, education, and the level of supervision.” The legislation mandates how the four levels for H-1B prevailing wages are to be calculated by mathematically by manipulating the Department's then-existing two level wages). the amendment provided that where the “survey has only 2 levels, 2 intermediate levels may be created by dividing by 3, the difference between the 2 levels offered, adding the quotient thus obtained to the first level and subtracting that quotient from the second level. See 8 U.S.C. 1182(p)(4); See also 73 FR at 77177 (Noting “that the skills-based wage levels are not determined by surveying the actual skill level of workers, but rather by applying an arithmetic formula” and that “Congress has explicitly endorsed the use of such an arithmetic approach . . .”).

In order to implement the INA's four-tier prevailing wage provision, the Department published comprehensive Prevailing Wage Determination Policy Guidance for Nonagricultural Immigration Programs, first in 2005 and revised guidance in 2009, which expanded the existing two-tier OEWS wage level system to provide four “skill levels”: Level I “entry level,” Level II “qualified,” Level III “experienced,” and Level IV “fully competent.” \139\ Although the higher-skilled specialty occupations of the H-1B and PERM visa program possess much greater variation in salaried wages based on experience, education, and levels of supervision for Congress to mandate no less than a four- tiered wage level structure, the Department's experience reviewing agricultural job orders shows that many occupations are primarily differentiated based on prior related experience, credentials or certificates necessary to utilize equipment, tools, and supplies, and the level of communication and close supervision workers need to perform the work. Given that four levels of distinction may present challenges to administer due to the unique nature of agricultural job opportunities, as compared to other higher-skilled specialty occupations, the Department has decided to adopt the two most pertinent skill levels of the existing four-tiered wage level structure when determining the AEWRs based on the qualifications contained in an employer's H-2A job offer: the Level I “entry level” that represents the mean of the lower one-third of workers in a given occupational wage distribution, and the Level III “experienced” that represents the mean of all workers in a given occupational wage distribution, which is a computation that has been used to set AEWRs in the H-2A program for many decades to determine the AEWRs. Because the statute uniquely mandates that qualifications contained in an employer's job offer must be “normal and accepted qualifications required by non-H-2A-employers in the same or comparable occupations and crops,” a Level III wage will continue to provide the most reasonable computation of the AEWRs in circumstances where the employer's desired qualifications align with what is normally required for a given occupation based on the O*NET system.

\139\ Employment and Training Administration; Prevailing Wage Determination Policy Guidance, Nonagricultural Programs (Rev. Nov. 2009). Available at: https://www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/NPWHC_Guidance_Revised_11_2009.pdf.

Thus, the Department concludes that use of an AEWR determination methodology that takes into account the qualifications contained in the employer's job offer--similar to the assessment conducted in determining prevailing wages in the permanent and H-1B programs-- provides a more reasonable, consistent, and administratively feasible approach that better reflects market-based wages paid to U.S. workers similarly employed than the current methodology of providing a single average hourly gross wage without any consideration of the qualifications required by employers who are seeking temporary agricultural labor certification to employ H-2A nonimmigrant workers.

To reduce the potential for inconsistent assignments of a SOC code(s) to the employer's job opportunity by SWAs and COs, address concerns raised in recent litigation against the 2023 AEWR Final Rule, and promote a more effective administration of the H-2A program, the Department is adopting in this IFR, standards by which the SWAs and COs will determine the appropriate SOC code(s) based on the duties performed for the majority (meaning more than 50 percent) of the workdays during the contract period, including those duties closely and directly related, and qualifications contained in the employer's job offer. Specifically, as described in new paragraph (b)(7), when the employer identifies on the H-2A job order (Form ETA-790A) the duties that it expects workers to perform for the majority of the workdays during the contract period, the SWA and CO will assess such duties and, in combination with any necessary job qualifications, assign the SOC code that best represents the employer's job opportunity.

For many decades, the assessment of job duties and qualifications contained in the employer's job offer by the SWA and CO, and assignment of the SOC code, was based on the occupational classification that best represented most of the work to be performed for purposes of apprising prospective qualified and eligible U.S. workers of the job opportunity. The assignment of the SOC code did not have an impact on the employer's wage obligations because a single AEWR based on the field and livestock worker (combined) category of occupations was determined for all H-2A job opportunities, regardless of duties to be performed and level of skill or qualifications required in the job offer. However, under the 2023 AEWR Final Rule, the Department bifurcated the determination of the AEWRs by issuing an FLS-based AEWR when the duties identified in the H-2A job order covered one or more of the SOC codes encompassed by the field and livestock workers (combined) category of occupations under the FLS. When the duties identified in the H-2A job order were not encompassed by one or more SOC codes within the FLS-based field and livestock workers (combined) category of occupations, the Department began issuing an OEWS-based AEWR for that specific SOC code assigned to the employer's job opportunity. In addition, when the duties identified in the H-2A job order could not be encompassed within a single SOC code, the employer was required to offer, advertise, and pay all workers performing such duties the highest AEWR across all the applicable SOC codes, regardless of the amount of time a worker(s) spent performing such duties during the certified period of employment. See Sec. 655.120(b)(5). In other words, although the vast majority

of H-2A job opportunities certified by the Department are encompassed within one or more SOC codes covered by field and livestock workers (combined) category of occupations under the FLS and are subject to the single statewide AEWR determination, still other H-2A job opportunities include duties that fall both within and outside of the field and livestock workers (combined) category and, no matter how often a particular duty or work task is performed by a worker, the Department determines the AEWR based on the highest of the applicable FLS and OEWS-based wage rates that must be paid to workers employed under the temporary agricultural labor certification for the entire certified period of employment.

The Department has determined that the standards associated with the assignment of a SOC code(s) to the employer's job opportunity, which is inextricably linked to the AEWR determination that imposes substantive wage obligations on employers, needs revision. In USA Farm Labor, Inc., plaintiffs expressed concern that the 2023 AEWR Final Rule standards required the SWAs and COs to assign a SOC code with a higher AEWR to an employer's job opportunity, such as construction laborer or heavy truck driver, even where a worker(s) will only be expected to perform such work on a minor or intermittent basis, and that any “job duty consistent with a higher paid occupation will trigger a higher AEWR without regard to how much time a worker spends performing that duty.” \140\ Plaintiffs in Florida Growers Association, Inc., raised similar concerns with the court and suggested the Department confine its use of OEWS-based AEWR determinations 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 finally, in Teche Vermilion, the court determined the plaintiffs were “likely to succeed on the merits of their claim that the Final Rule exceeds DOL's authority under section 1188(a)(1)(B) because it bases its revised AEWR methodology for H-2A sugarcane truck drivers on the average of wages of domestic, non- farm transportation workers who are not similarly employed.” \141\

\140\ USA Farm Labor, Inc. v. Su, Memorandum in Support of Plaintiff's Motion for Summary Judgment at 3, No. 1:23-cv-00096-MR- WCM (W.D.N.C. 2023).

\141\ Id. at 43.

Upon careful consideration, the Department agrees that assigning a SOC code and determining the AEWR for an employer's job opportunity based solely on any duty to be performed, regardless of the amount of time a worker(s) is expected to perform such duty during a certified period of employment and without a full consideration of the qualifications necessary to perform such work, has led to stakeholder concerns regarding inconsistent SOC code assignments from the SWA and the CO that are not reflective of wages paid to U.S. workers similarly employed, and has resulted in the imposition of excessively higher wage obligations on employers covering the entire certified period of employment that cannot be reasonably justified. It is the Department's view that the standards contained in the 2023 AEWR Final Rule must be reconsidered. Assignment of a SOC code and determination of the applicable FLS or OEWS-based AEWR should not be based on any duty identified in the employer's job offer while essentially disregarding the preponderance of other duties and qualifications the employer expects workers to perform and possess to meet the needs of its agricultural operations. Upon review, the Department thinks that the approach in the 2023 AEWR Final Rule was insufficiently justified and not necessary for the Department to protect against adverse effects. The Department reasoned that assignment of higher-skill, higher-paid SOC code(s) was necessary whenever any job duty performed for any amount of time fell, for example, outside of the field and livestock workers (combined) category of occupations because: (1) an FLS-based AEWR for this job would adversely affect workers in higher paid occupations like construction or heavy trucking; \142\ (2) employers may combine two job opportunities into one application and have certain workers perform exclusively the higher-skill duties; \143\ and (3) the policy is simpler and more administratively feasible and would not require additional recordkeeping on employers.\144\

\142\ 88 FR at 12783 (“Use of the highest applicable wage in these cases reduces the potential for employers to offer and pay workers a wage rate that, while appropriate for the general duties to be performed, is not appropriate for other, more specialized duties the employer requires.”).

\143\ Id. at 12781 (“[A]ssigning an SOC code based on the `primary duties' or the percentage of time identified for each duty in an employer's job opportunity description could permit or encourage employers to combine work from various SOC codes, interspersing higher-skilled, higher-paying work among many workers so that the higher-paying work is never a duty performed by any one employee more than the specified percentage.”).

\144\ Id. at 12783 (“[U]se of the highest applicable wage imposes a lower recordkeeping burden than if the Department permitted employers to pay different AEWRs for job duties falling within different SOC codes on a single Application for Temporary Employment Certification.” A “ `percentage per duty' disclosure requirement would increase administrative burden for employers (e.g., substantial recordkeeping to ensure that the actual work each worker performed aligns with the percentages disclosed) . . .”).

Upon review, the Department has concluded that the 2023 AEWR Final Rule did not adequately explain similarly employed workers' wages would be impacted if an H-2A worker whose duties involve mostly performing field and livestock work with a minimal amount spent hauling crops using trucks, for example, were paid the FLS-based AEWR without considering the amount of time or duration workers spent performing such tasks and the qualifications identified in the employer's job offer. Further, this standard was not consistent with the Department's stated intent in the 2023 AEWR Final Rule to undertake a “case-by- case” review of the “totality of the information in an H-2A application and job order” based on a consideration of whether the “qualifications, requirements, and other factors are consistent with that occupation” like “the type of equipment involved . . . [and] the location where the work will be performed . . .” \145\

\145\ Id. at 12780.

The Department has also reconsidered its reasoning from the 2023 AEWR Final Rule that payment of a higher-skill occupation wage for the entire employment period is necessary in all cases where a minor duty falls within that category in order to prevent misclassification of the employer's job opportunity. The central inquiry in assigning one or more SOC code(s) to an employer's job opportunity and determining the AEWR is whether two sets of workers (i.e., H-2A and U.S. workers) are or will be similarly employed, such that employment of the H-2A workers below the AEWR would adversely affect U.S. workers similarly employed. The Department's existing regulatory mechanisms to enforce prohibitions on misclassification of workers are adequate and appropriate, and the lack of objective data or other evidence supporting concerns about misclassification of workers or misrepresentation of a job opportunity supports such conclusion.\146\

\146\ In addition, the Department's regulations have long required an H-2A employer to pay at least the AEWR to any U.S. worker who in fact performs the same work as the H-2A workers for time so spent, regardless of the worker's qualifications or skill level, further protecting against the potential harm from misclassification. See 20 CFR 655.103(b) (definition of corresponding employment); Overdevest, 2 F.4th 977.

Additionally, without objective data or other evidence supporting the aforementioned concerns, the Department believes there is insufficient grounds for assigning an employer's job opportunity to a SOC code with an excessively higher AEWR based on a single statement of duties or use of a particular vehicle, regardless of the amount of time a worker(s) may spend performing such duties or the relative importance of that duty to the broader job opportunity.

And finally, the Department concludes that imposition of the standard in the 2023 AEWR Final Rule based on ease of employer recordkeeping burdens was not sufficiently justified in comparison to the actual wage obligations being imposed on employers impacted by the application of this standard. The Department agrees with the court's reasoning in Teche Vermillion that the standard of assigning the SOC code to the employer's job opportunity warranted more careful consideration of the unrecoverable compliance costs imposed on employers relative to the non-quantified benefits discussed by the Department in the vacated 2023 AEWR Final Rule.

For the reasons discussed above, the Department is adopting a revised standard to ensure that SOC code assignments and AEWR determinations for employer job orders are based on an assessment of the duties performed for the majority of the workdays during the contract period, including those closely and directly related duties, and the qualifications necessary for workers to perform the work. This standard will provide a straightforward method for the SWAs and COs to use when assigning SOC code(s) and will more effectively ensure occupational classifications are based on consideration of the totality of the circumstances related to the employer's job opportunity. Specifically, when the employer identifies on the H-2A job order the duties that it expects workers to perform for more than 50 percent of the workdays during the contract period and such duties, or a combination thereof, fall within one or more SOC codes within the field and livestock workers (combined) category, the SWA and CO will assess such duties and, taking into consideration any necessary job qualifications, assign the SOC code that best represents the employer's job opportunity within that category. When the job duties performed for the majority of the workdays during the contract period are within the field and livestock workers (combined) category and the employer's job order discloses duties from other occupations that are not encompassed by this category of occupations, the job opportunity will still be assigned a SOC code within the field and livestock workers (combined) category, provided that these other duties are performed for less than the majority of the workdays during contract period. The Department reminds stakeholders that all job duties disclosed on the job order, regardless of the amount of time workers are expected to perform them, must still qualify as agricultural labor or services as defined in the statute and regulations. See generally 8 U.S.C. 1101(a)(15)(H)(ii)(a) (limiting H-2A eligibility to “agricultural labor or services, as defined by the Secretary of Labor in regulations and including agricultural labor defined in section 3121(g) of Title 26, agriculture as defined in section 203(f) of Title 29, and the pressing of apples for cider on a farm, of a temporary or seasonal nature”).

As an example, where a fixed-site grower identifies on the H-2A job order that workers will perform duties related to the planting, cultivating, and harvesting of sugarcane for the majority of the workdays during the contract period, which is typically assigned SOC code 45-2091 (Agricultural Equipment Operators) within the field and livestock worker (combined) category with one AEWR, and occasionally transport harvested sugarcane using heavy trucks along public roads to local processing mills, which was assigned SOC code 53-3032 (Heavy and Tractor-Trailer Truck Drivers) under the 2023 AEWR Final Rule with a different and higher AEWR, the fact that the workers may be expected to operate and drive heavy trucks for any amount of work time during the certified period of employment will no longer be dispositive in assigning the SOC Code and determining the AEWR for the employer's job opportunity. Rather, the Department will consider the totality of circumstances of the employer's job opportunity, including the nature and duration of the duties to be performed and the qualifications that workers must possess to perform the duties prescribed. Under this IFR, consideration of duties disclosed on the job order that the employer expects workers to perform for the majority of the workdays during the contract period will ensure an appropriate consideration of the totality of the H-2A job opportunity, with a clear focus on the majority duties of the job and the relation of job duties to each other, and establish a method SWAs and COs can use to more clearly make determinations of similarly employed workers for the purpose of determining the wage rate necessary to prevent adverse effect on those workers.

The Department also notes that adoption of this standard is similar to the assessment performed by the SWA and the CO when determining whether an employer's job opportunity qualifies under the standards and procedures, including a determination of the applicable monthly AEWR, for employers seeking to hire foreign temporary agricultural workers for job opportunities in herding and production of livestock on the range. Specifically, under 20 CFR 655.210(b), the employer's job order must include, among other required conditions, a statement that workers will spend the majority (meaning more than 50 percent) of the workdays during the contract period engaged in the herding or production of livestock on the range. Any job duties performed at a place other than the range (e.g., a fixed site farm or ranch) must be performed on no more than 50 percent of the workdays in a work contract period, and duties at the ranch must involve the production of livestock, which includes duties that are closely and directly related to herding and/or the production of livestock. Provided that an employer's job offer meets this majority of workdays standard, the SWA and CO will typically assign SOC code 45-2093 (Farmworkers, Farm, Ranch, and Aquacultural Animals) to the employer's job opportunity and evaluate the wage offer based on a determination of the monthly AEWR applicable to work performed on the range.

Further, adoption of this standard is similar (but not identical) to the primary duties assessment stipulated by WHD regulations and guidance related to FLSA exemptions. For example, the Department uses a primary duties test in determining whether an employee is exempt from the FLSA's minimum wage and overtime pay requirements because the employee is employed in a bona fide executive, administrative, or professional capacity. See 29 U.S.C. 213(a)(1). The FLSA regulations at 29 CFR part 541 define a “primary duty” as “the principal, main, major or most important duty that the employee performs . . . with the major emphasis on the character of the employee's job

as a whole.” 29 CFR 541.700(a).\147\ WHD notes in its regulations that the “amount of time spent performing exempt work can be a useful guide in determining whether exempt work is the primary duty of an employee” and thus “employees who spend more than 50 percent of their time performing exempt work will generally satisfy the primary duty requirement,” though the amount of time an employee spends on exempt duties alone “is not the sole test.” 29 CFR 541.700(b). When “an employee concurrently (or simultaneously) performs both exempt and nonexempt duties,” the “character of the employee's job as a whole” determines the primary duty.\148\ For example, an employee would not qualify for the FLSA exemption for executive employees if the employee's “primary duty is ordinary production work or routine, recurrent, or repetitive tasks . . . even if they also have some supervisory responsibilities.” \149\ Additionally, in determining whether an employee's primary duty is exempt work, WHD also considers ordinarily non-exempt duties to be exempt under the FLSA if they are “directly and closely related” to exempt duties, meaning “relate[d] to exempt work and contribut[ing] to or facilitat[ing] performance of exempt work,” such as duties that “arise out of exempt duties and routine work without which exempt work cannot be performed properly.” \150\ Finally, the FLSA primary duty standard looks at “whatever length of time is appropriate to capture the character of the employee's job as a whole, not a day-by-day scrutiny of the tasks performed.” \151\

\147\ See also 5 CFR 831.802 (OPM regulations) (stating that “if an employee spends an average of at least 50 percent of his or her time performing a duty or group of duties, they are his or her primary duties” and defining primary duties as duties “paramount in influence or weight . . . that . . . constitute the basic reasons for the existence of the position . . . Occupy[ing] a substantial portion of the individual's working time over a typical work cycle” and “assigned on a regular and recurring basis.”).

\148\ WHD Field Operations Handbook, Ch. 22, Executive, Administrative, Professional, Computer, and Outside Sales Exemptions: FLSA Section 13(a)(1) (29 U.S.C. 213(a)(1)), Sec. Sec. 22b01(c)(1), available at https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/FOH_Ch22.pdf; 29 CFR 541.106.

\149\ WHD Field Operations Handbook at Sec. 22b01(c)(3).

\150\ Id. at Sec. 22a06(d).

\151\ Id. at Sec. 22a03.

The adoption of a majority duties standard in this IFR will be administratively feasible and not impose unnecessary recordkeeping burdens on employers. To implement this new standard, the Department will provide guidance in the form of frequently asked questions that can help employers understand how to use the existing the H-2A job order form to specify the majority duties, including those closely and directly related duties, and then distinguish those from other duties that the worker(s) are expected to perform during the period of employment. The frequently asked questions the Department will provide to employers seeking temporary agricultural labor certification are procedural and non-substantive clarifications of existing OMB-approved information collection that will help employers better organize and identify the duties and tasks already being disclosed on the H-2A job order that will assist the SWA and CO in assigning the SOC code that best represents the employer's job opportunity. The requirement that employers keep accurate and adequate records with respect to each worker's earnings, including records showing the nature and amount of the work performed, and make these records available for inspection and transcription by the Department and by the worker and representatives designated by the worker, in accordance with Sec. 655.122(j)(1)-(2) remains unchanged. As provided in the Department's existing regulations, depending on the nature of the violation, failure to maintain and produce compliant records or failure to accurately describe the nature and extent of job duties may result in debarment under Sec. 655.182(d)(1)(vi), (vii), and (d)(4) or (d)(5). See also 29 CFR 501.20.

In summary, the Department concludes that adoption of a majority duties standard, including those duties closely and directly related, together with the clarification of the SOC coding process, will help to ensure consistent coding based on consideration of the totality of the employer's job opportunity and will provide more reasonable determinations of workers who are similarly employed. More consistent occupational classification, in turn, will ensure AEWR determinations and corresponding wage obligations of employers are accurate with the “clear congressional intent . . . 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.” \152\

\152\ 88 FR at 12772 (citing 54 FR 28037, 28046 (Jul. 5, 1989)).

To address the need for consistent occupational coding related to an employer's job opportunity, the Department is providing additional guidance regarding the methods by which the CO will assign H-2A job opportunities to one or more SOC occupation codes based on an assessment of the duties that employers expect workers to perform for the majority of the workdays during the contract period, including those duties closely and directly related, and qualifications contained in the employer's job order seeking temporary agricultural labor certification to employ H-2A workers. When determining the AEWR, the SWA and the CO must first determine the appropriate occupational classification, or SOC code(s), for the employer's job opportunity by comparing the duties and requirements contained in the employer's job order to the SOC definitions, skill requirements, and tasks that are listed in O*NET.\153\ The Department is taking the opportunity in this rulemaking to clarify how the CO and SWA will evaluate the scope of duties identified within an employer's job offer for purposes of determining the applicable SOC code(s), particularly as it relates to certain driving, supervisory, and other farm maintenance duties performed by workers.

\153\ 88 FR at 12779.

Prior to the 2023 AEWR Final Rule, assignment of SOC codes was less significant to the employer's AEWR obligations because all job opportunities were issued an FLS-based AEWR covering the field and livestock workers (combined) occupations. The assignment of SOC codes became more significant in AEWR determinations under the 2023 AEWR Final Rule, which specified that when the employer's job requires duties that cannot be encompassed within a single SOC occupational classification, the employer must pay the highest AEWR for the applicable SOC codes. For example, if the employer's job order required heavy trucking duties and crop harvesting duties, the Department assigned two SOC codes--53-3032 encompassing heavy truck drivers and 45-2092 encompassing crop farmworkers--and assigned the highest AEWR, which in most cases was the occupation-specific OEWS wage applicable to SOC 53-3032, rather than the FLS field and livestock workers

(combined) wage applicable to SOC 45-2092. The Department concluded that for “these mixed job opportunities . . . using the AEWR for the higher paid SOC code is necessary to prevent adverse effects on the wages of workers in the United States similarly employed resulting from inaccurate SOC code assignment.” \154\

\154\ Id. at 12777.

However, the statute does not define or dictate how the Department is to apply the term “similarly employed” for purposes of ensuring no adverse effect on wages and working conditions and does not require that such a determination be predicated on workers employed in an identical job. It does, however, specify that the Secretary “shall apply the normal and accepted qualifications required by non-H-2A- employers in the same or comparable occupations and crops.” \155\ When evaluating an employer's job offer, the Department has historically interpreted the term “qualification” to mean a characteristic, excluding the job duties or work tasks to be performed, that is necessary to the individual's ability to perform the job in question. Such characteristics include, but are not limited to, the ability to use specific tools, vehicles, or equipment as well as any education or training required for performing duties or work tasks under the employer's job opportunity.\156\

\155\ See 8 U.S.C. 1188(c)(3)(A)(ii).

\156\ See 80 FR 24062.

In the absence of other reliable and objective sources of information related to the job qualification of a specific crop, the Department has a long-standing practice of using O*NET's SOC-based taxonomy for assessing whether an employer's job qualification is bona fide and consistent with the normal job qualifications of employers and workers performing substantially similar work in jobs covered by a particular occupational classification. This analysis can further aid the Department in assigning an appropriate AEWR, better tailored to protecting workers in the U.S. similarly employed than the considerations used under the 2023 AEWR Final Rule. Specifically, duties and responsibilities in an H-2A employer's job opportunity that have common characteristics and qualifications (e.g., work tasks, requirements, tools), or those that are substantially alike in substance or essentials, as the duties and responsibilities performed by workers employed in jobs covered by a particular SOC code, would indicate (among other factors as described herein) that the particular SOC code is appropriate to assign to the H-2A job opportunity. Conversely, if the job duties or work tasks, requirements, tools, or other qualifications in the employer's job opportunity seeking temporary labor certification to employ H-2A workers are substantially different from those identified in a specific SOC code within the O*NET taxonomy, that SOC is unlikely to be appropriate to assign to the H-2A job opportunity.

O*NET remains a primary reference source used by the CO and SWA to assess the scope of duties and qualifications identified within an employer's H-2A job opportunity for purposes of determining its occupational classification (i.e., SOC code). O*NET “was first conceived of as a conceptual model of information on occupational and worker requirements and attributes . . . designed to replace the outdated Dictionary of Occupational Titles . . .” the predecessor to O*NET, and was first released as the O*NET `98 database.\157\ O*NET is a taxonomy of occupational characteristics organized around job- oriented and worker-oriented descriptors, such as detailed work tasks or activities, job requirements (e.g., education, training, licensure, experience), organizational context, and tools and technology that are common to the occupation and may influence the scope of work performed and the capacity to acquire knowledge and skills required for effective work performance.\158\ Detailed occupational information is collected using multiple independent methods such as surveying a national sample of employer establishments and their workers; surveying samples of occupational experts; and collecting data from occupational analysts, who are provided with updated data from surveys of workers.

\157\ Boes, Ron, Frugoli, Pam, Lewis, Phil, and Litwin, Karen (Oct. 2001), O*NET Database Release 4.0: Content Model and Database Summary, The Evolution of O*NET, 2. National O*NET Consortium. Available at: https://www.onetcenter.org/dl_files/summary_only.pdf.

\158\ See The O*NET Content Model (explaining the O*NET content model, which “provides a framework that identifies the most important types of information about work and integrates them into a theoretically and empirically sound system” that “allows occupational information to be applied across jobs, sectors, or industries (cross-occupational descriptors) and within occupations (occupational-specific descriptors)” and “enable the user to focus on areas of information that specify the key attributes and characteristics of workers and occupations.”). Available at: https://www.onetcenter.org/content.html. For a detailed description of the development of the Content Model, see Peterson, N.G., et al. (1999). An Occupational Information System for the 21st Century: The Development of O*NET. American Psychological Association.

The O*NET structure allows occupational information to be aggregated and applied across multiple jobs, sectors, or industries where the work tasks and activities performed by workers, as well as the requirements to perform such work, are substantially similar.\159\ For example, SOC code 45-2092 (Farmworkers and Laborers, Crop, Nursery, and Greenhouse) includes a wide range of distinct jobs such as field irrigation workers, greenhouse workers, and orchard workers, where the underlying characteristics of work (i.e., tasks, requirements, tools) across these distinct jobs are substantially similar to one another. Thus, although workers under any particular SOC code may be performing work across dozens of different job titles and in potentially different sectors or industries, the characteristics and qualifications of the work performed are common or substantially alike in substance or essentials.

\159\ See, e.g., A Database for a Changing Economy: Review of the Occupational Information Network (O*NET) (2010), 22-23. National Research Council, Washington, DC: National Academies Press (Describing the O*NET content model as “a taxonomy of occupational descriptors” with “occupations as the unit of analysis . . . rather than the job or position” and noting the occupation “is broader than a specific job or specific position,” “is not idiosyncratic to a particular organization, industry, or setting,” and may “include several jobs if the general responsibilities, activities, and requirements for the various jobs are substantially similar.”).

In addition, the O*NET provides relevance and importance scores for specific work tasks that reflect the percentage of current workers who believe that a particular duty or work task is relevant and important to his or her current job. For purposes of classifying an employer's job opportunity under one or more SOC codes, these scores provide an understanding of the full scope of job duties considered “core” or primary tasks to the occupation, and which tasks are “supplemental” or directly and closely associated to workers similarly employed in the occupational classification. O*NET classifies tasks as “core” when at least 67 percent of current workers surveyed believe that the task is relevant and which the average current worker believes the task is important to extremely important (i.e., >=3.0 based on a scale where 1 = Not Important to 5 = Extremely Important) to their job. Supplemental tasks are those tasks performed within the occupational classification where less than 67 percent of current workers surveyed believe that the task is relevant and which the average current worker

believes is relatively less important to their job.

For example, the task of “load agricultural products into trucks, and drive trucks to market or storage facilities” is considered a core task to the SOC code 45-2092 (Farmworkers and Laborers, Crop, Nursery, and Greenhouse) with a relevance score of 78 and an importance score of 3.3. This means that 78 percent of current Farmworkers and Laborers surveyed reported that this task is relevant, and the average worker believed it is frequently important to their job but not necessarily performed on a day-to-day basis. However, the task of “move containerized shrubs, plants, and trees, using wheelbarrows or tractor” is considered supplemental because, although the average worker believed it is an important task, only 37 percent of current Farmworkers and Laborers surveyed reported this task as relevant to their day-to-day work. Thus, the combination of the “core” and “supplemental” work tasks identified in O*NET for a particular SOC code helps establish a data-driven foundation for evaluating the scope of duties that are normally performed by workers, even across multiple distinct jobs, who are similarly employed under that occupational classification.

Finally, O*NET collects information pertaining to “tools and technology” that are deemed essential to effective performance within a distinct job under the SOC code. In other words, the machines, equipment, vehicles, software, and other tools identified are specific to the occupational classification, reflect those items necessary for an incumbent worker to carry out the tasks, whether “core” or “supplemental,” and expressed in a language understood by workers who perform work in the job, sector, or industry. In addition, the identified tools and technology often have an expectation of a training requirement that can range from a short-term demonstration of use or on-the-job training to more formal education or vocational training. For example, SOC code 45-2091 (Agricultural Equipment Operators) identifies a combination of more than 64 different categories of tools that workers may use to perform their jobs, including a wide array of harvesting equipment, trucks and tractor-trailers, spreaders, and loaders, where employees in this occupational classification need anywhere from a few days to a few months of training, and accordingly a more experienced incumbent worker usually provides a short demonstration on proper use and care of the equipment. Thus, when all these components within the taxonomy are considered in their totality, O*NET represents the best available information for the CO and SWA to use in evaluating an employer's job opportunity for purposes of classifying the agricultural labor or services into one or more SOC codes and determining the applicable AEWR.

In determining the appropriate occupational classification, the CO will continue to evaluate each job opportunity on a case-by-case basis, considering the totality of the information in an H-2A application and job order, to determine the appropriate SOC code. In making a determination of the SOC code(s), the CO and SWA will continue to compare the duties and qualifications contained in the job order with the definitions, work tasks, job requirements, and tools that are listed in O*NET's SOC-based taxonomy. Where similar information appears in more than one SOC code (i.e., overlapping work tasks), such as transporting workers or agricultural commodities or maintaining and repairing farm buildings or equipment, the CO and SWA will continue to consider other factual qualifications presented in the job order (e.g., types of vehicles or minimum experience or licensure requirements) that can provide context for determining which SOC code or codes best represent the employer's job opportunity. To the maximum extent practicable, where the duties performed for the majority of the workdays during the contract period, including those duties closely and directly related, and qualifications presented in the job order are sufficiently comparable to agricultural work performed on or off farm (e.g., workers primarily engaged in harvesting sugarcane and will also transport the cut cane off farm to a mill for processing), the CO and SWA will assign one SOC code contained within an agricultural-related major occupational grouping (e.g., 45-0000 Farming, Fishing, and Forestry Occupations) or other grouping of specific occupations directly and closely associated with the agriculture, forestry, fishing, and hunting industry sector (i.e., North American Industry Classification System code 11 \160\) or the cluster of agricultural careers \161\ identified by O*NET. Job duties or work tasks presented in the job order that are characterized as irregular, sporadic, or intermittent will not be considered by the CO and SWA for purposes of determining its occupational classification or SOC code.

\160\ O*NET classifies occupations according to industry groups where businesses or organizations have similar activities, products, or services. The occupations designated by O*NET as falling within the Agriculture, Forestry, Fishing, and Hunting Industry are based on the percentage of workers employed in that industry. For more information, see the O*NET website at https://www.onetonline.org/find/industry?i=11.

\161\ Based on the National Career Clusters[supreg] Framework, O*NET organizes occupations containing the same field of work that require similar skills into career clusters as a taxonomy that helps inform the design and implementation of education, employment and job training programs that can help focus program planning towards individuals obtaining the necessary knowledge, competencies, and training for success in a particular career pathway. For more information on the occupations organized into the Agriculture Career Cluster, see the O*NET website at https://www.onetonline.org/find/career?c=050100. For more information on the National Career Clusters Framework, see the Advance CTE website at https://careertech.org/career-clusters.

For job opportunities involving driving duties, the CO and SWA will continue to look at qualifications such as the type of equipment involved (e.g., pickup trucks, custom combine machinery, or semi tractor-trailer trucks; makes and models of machines to be used), the location where the work will be performed (e.g., on a farm or off), and any other requirements contained in the job order to determine the appropriate SOC code and applicable AEWR. Based on a review of the O*NET core and supplemental work tasks, an employer's job opportunity can specify a wide array of driving responsibilities across one or more of the five SOC codes comprising field and livestock worker occupations (combined) that would continue to be subject to a single AEWR. Workers employed in jobs covered by these SOC codes are primarily engaged in agricultural work (e.g., planting, cultivating, harvesting) and perform other tasks that are directly and closely related, such as driving duties.

Specifically, a worker engaged in harvesting, whether by hand or machinery, is typically performing other relevant and important tasks covered by the field and livestock worker (combined) category of occupations, such as “load[ing] agricultural products into trucks and drive trucks to market or storage facilities,” which is encompassed by SOC code 45-2092 (Farmworkers and Laborers, Crop, Nursery, and Greenhouse); “driv[ing] trucks to haul crops, supplies, tools, or farm workers,” which is encompassed by SOC code 45-2091 (Agricultural Equipment Operators); and “patrol[ing] grazing lands and driv[ing] trucks or tractors to distribute feed to animals or move equipment and animals from one location to another,” which is encompassed by SOC code 45-2093 (Farmworkers, Farm, Ranch, and Aquacultural Animals). With respect to

the types of equipment (i.e., tools), O*NET identifies as necessary for the performance of duties associated with these work tasks includes operating All-Terrain-Vehicles, sport utility vehicles, light trucks (i.e., less than 26,001 Gross Vehicle Weight), multi-purpose agricultural tractors, dump trucks, and heavy tractor-trailers (i.e., at least 26,001 Gross Vehicle Weight). Finally, performance of these driving duties and operation of the types of equipment identified do not normally require formal education (e.g., post-secondary) or training (e.g., apprenticeship) or credentialing (e.g., CDL license) under these SOC codes. Therefore, where the work tasks presented in an employer's job order require workers to be engaged in agricultural work for the majority of the workdays during the contract period and perform driving duties using any of the types of equipment identified without the requirement for formal education, training, or credentialing and possess three months or less of related experience, the CO and SWA will, absent additional job details that might indicate otherwise, assign one of the five SOC codes comprising field and livestock worker occupations (combined), as applicable, that best represents the employer's job opportunity and subject to a single AEWR.

In contrast, a H-2A job opportunity that requires a worker to possess a CDL with more than three months to one year of related experience and whose duties, including those duties closely and directly related, for the majority of the workdays during the contract period involve driving a heavy tractor-trailer combination to deliver agricultural products over public roads through weigh stations to storage or market, including other essential work tasks such as checking all load-related documentation for completeness and accuracy, operating Citizen Band radios or Global Positioning System equipment to exchange necessary information with supervisors or other drivers, coupling and uncoupling trailers, maintaining vehicle logs, and obtaining customer signatures for delivery of goods, may be assigned SOC code 53-3032 (Heavy and Tractor-Trailer Truck Drivers) even if such worker is also expected to perform some hand-harvesting work during a minor portion of the work contract period. In this scenario, the requirement under paragraph (b)(7) applies when determining the employer's H-2A wage obligation as the AEWR applicable to SOC code 53- 3032, absent additional job details that might indicate otherwise, best represents the agricultural labor or services to be performed under the employer's job opportunity.

For job opportunities that involve driving farmworkers from place to place from assigned housing to and from the farm property, the CO will consider factors such as the type of vehicle (e.g., a farm truck or van or a hired van or bus, such as a Calvans vehicle), the location where the farmworker transport will be performed (e.g., around the farm, including on private roads, or on public roads), and any qualifications and requirements for the transport (e.g., type of driver's licensure, gross vehicle weight, vehicle maintenance responsibilities, paperwork requirements) to determine the appropriate SOC code to assign to the employer's job opportunity. For instance, the Department notes that it is a common practice for employers to provide workers with multi-purpose vehicles (e.g., sport utility vehicles, heavy or light trucks) for use in transporting crops, supplies, equipment, tools, or other farmworkers, including vehicles needed to drive from employer-provided housing to the worksites on an as-needed basis, during the work contract period. These vehicles typically have a capacity of less than 13 tons and do not require the equivalent of a commercial drivers' license to operate on or off the farm properties. Therefore, driving duties associated with these types of qualifications are all within the five SOC codes comprising field and livestock worker occupations (combined). In addition, the fact the workers may also use these same vehicles, at their discretion, to transport themselves to the grocery store, bank, or laundry facilities, is not a relevant factor that would warrant the CO and SWA assigning another SOC code outside of the five SOC codes comprising field and livestock worker occupations (combined).

In contrast, an H-2A job opportunity that requires a worker to possess more than three months to one year of related experience and whose duties, including those duties closely and directly related, for the majority of the workdays during the contract period involve picking up farmworkers, according to a regular schedule, from employer-provided housing or a centralized pick-up point, in a van or bus used only for passenger transport, on public roads (e.g., from a motel to the farm), driving them to the place(s) of employment to perform hand-harvest work, and communicating with other drivers and/or farm supervisors to receive information and coordinate vehicle movements for passenger pick-up/drop-off services, may be assigned SOC code 53-3053 (Shuttle Drivers and Chauffeurs) even if such worker is also expected to perform some hand-harvesting work. In this scenario, the requirement under paragraph (b)(7) applies when determining the employer's H-2A wage obligation as the AEWR applicable to SOC code 53-3053, absent additional job details that might indicate otherwise, best represents the agricultural labor or services to be performed under the employer's job opportunity.

For job opportunities involving supervisory duties, O*NET core and supplemental work tasks associated with the five SOC codes comprising field and livestock worker occupations (combined) provide a reasonable degree of flexibility for workers to direct, monitor and oversee the work of other workers employed in the job opportunity without the higher-skills and requirements associated with formal supervision. For instance, workers employed in jobs covered by these SOC codes who are engaged in field and livestock related work can also perform tasks identified by O*NET, such as “direct and monitor the work of work crews, casual and seasonal help during planting, weeding, and harvesting; inform farmers or farm managers of crop progress; record information about crops, livestock, plants, pesticide use, growth, production, and costs; and maintain inventory and order materials,” which are all encompassed, in some manner, by SOC codes 45-2091 (Agricultural Equipment Operators), 45-2092 (Farmworkers and Laborers, Crop, Nursery, and Greenhouse), and 45-2093 (Farmworkers, Farm, Ranch, and Aquacultural Animals). Directing, monitoring and overseeing the work of other workers commonly means assisting the farmer or farm managers in assigning tasks, issuing equipment, communicating in a manner that ensures the effective performance of work; collecting and recording worker productivity or progress using paper or electronic devices; and performing basic training or direction to workers on agricultural techniques, as necessary. Therefore, where the work tasks presented in an employer's job opportunity require workers to be engaged in field and livestock related work for the majority of the workdays during the contract period and perform other supervisory related duties, the CO and SWA will, absent additional job details that might indicate otherwise, assign one or the five SOC codes comprising field and livestock worker

occupations (combined) that best represents the employer's job opportunity and subject to a single AEWR.

In contrast, an H-2A job opportunity that requires a worker to possess one or two years related experience for the purpose of performing duties for the majority of the workdays during the contract period involving the planning or scheduling work crews according to personnel and equipment availability, including transportation to-and- from worksite(s), training and monitoring workers to ensure that safety regulations are followed, warning or disciplining those who violate safety regulations, preparing and maintaining time, attendance, or payroll reports, recording and maintaining personnel actions, such as performance evaluations, hires, promotions, or disciplinary actions, and conferring with farmers and farm managers to evaluate weather or soil conditions and develop or modify work schedules and activities, may be assigned SOC code 45-1011 (First-Line Supervisors of Farming, Fishing, and Forestry Workers) even if such worker is also expected to perform some hand-harvesting work. In this scenario, the requirement under paragraph (b)(7) applies when determining the employer's H-2A wage obligation as the AEWR applicable to SOC code 45-1011, absent additional job details that might indicate otherwise, best represents the agricultural labor or services to be performed under the employer's job opportunity.

For job opportunities involving farm maintenance duties, O*NET core and supplemental work tasks associated with the five SOC codes comprising field and livestock worker occupations (combined) permit a worker primarily engaged in performing field and livestock related work to also perform other relevant and important tasks such as “adjust, repair, and service farm machinery and notify supervisors when machinery malfunctions,” which is encompassed by SOC code 45-2091 (Agricultural Equipment Operators); “repair and maintain farm vehicles, implements, and mechanical equipment; maintain and repair irrigation and climate control systems, and repair farm buildings, fences, and other structures,” which are encompassed by SOC code 45- 2092 (Farmworkers and Laborers, Crop, Nursery, and Greenhouse); and “inspect, maintain, and repair equipment, machinery, buildings, pens, yards, and fences,” which is encompassed by SOC code 45-2093 (Farmworkers, Farm, Ranch, and Aquacultural Animals). With respect to the types of equipment, O*NET identifies a wide array of tools necessary for the performance of maintenance duties ranging from basic hand tools, plows and posthole diggers to backhoes, land levelers and power tools. Further, performance of these tasks and use of these tools do not require any formal education or training and, in many cases, are commonly used on farms and ranches to build, maintain, and repair minor agricultural structures such as livestock pens, existing farm buildings, and temporary or permanent fencing around the property. Therefore, where the work tasks presented in an employer's job opportunity require workers to be engaged for the majority of the workdays during the contract period in field and livestock related work and perform related maintenance duties, including building minor agricultural structures and fencing around the property, using any of the types of equipment identified and without the requirement for formal education, training, or extensive work-related experience, the CO and SWA will, absent additional job details that might indicate otherwise, assign one or the five SOC codes comprising field and livestock worker occupations (combined) that best represents the employer's job opportunity and subject to a single AEWR.

However, the Department continues to receive H-2A applications, for example, related to ranch livestock confinement or grain bin elevator construction on farms that require a few months to one year of previous experience where workers are expected to perform duties such as reading and following plans and measurements; aligning and sealing structural components (e.g., walls and pipes), sometimes by welding; building frameworks (e.g., walls, roofs, joists, studding, and window and door frames); installing metal siding, windows, ceiling tiles, and insulation; and pouring concrete. These construction duties are consistent with SOC code 47-2061 (Construction Laborers), not with SOC code 45-2093 where the duties involve maintaining and repairing farm buildings. In addition, the location of the work--on a farm or off a farm--or type of structure to be constructed--a livestock confinement building or a retail building--does not alter the essential duties, skills, and other qualifications required of the worker. In this scenario, where a H-2A job opportunity's tasks, qualifications, and requirements indicate skilled construction work will be performed, the requirement under paragraph (b)(7) applies when determining the employer's H-2A wage obligation as the AEWR applicable to SOC code 45- 2067, absent additional job details that might indicate otherwise, best represents the agricultural labor or services to be performed under the employer's job opportunity.

With respect to the maintenance of farm equipment or other vehicles, the Department reiterates that some on-farm mechanics may perform only the type of routine maintenance consistent with the O*NET work tasks and other qualifications (e.g., tools and job requirements) encompassed by the five SOC codes comprising field and livestock worker occupations (combined). The Department continues to receive H-2A applications for mechanics and service technicians where workers are expected to possess one or two years related experience for the purpose of being engaged for the majority of the workdays during the contract period in duties such as the following: diagnose, repair, and overhaul engines, transmissions, components, electrical and fuel systems, etc. on tractors, irrigation systems, generators and/or other farm equipment; make major mechanical adjustments and repairs on farm machinery; repair defective parts using welding equipment, grinders, or saws; repair defective engines or engine components; replace motors; fabricate parts, components, or new metal parts using drill presses, engine lathes, welding torches, and other machine tools (grinders or grinding torches); test and replace electrical circuits, components, wiring, and mechanical equipment using test meters, soldering equipment, and hand tools; read inspection reports, work orders, or descriptions of problems to determine repairs or modifications needed; and maintain service and repair records. The Department notes that duties of this type and scale, whether performed on equipment or other vehicles (e.g., trucks, automobiles, and buses used to support the farming operations) that are powered by diesel or gas, are encompassed within 49-3041 (Farm Equipment Mechanics and Service Technicians), and not within the routine general maintenance or repair tasks identified by O*NET associated with the five SOC codes comprising field and livestock worker occupations (combined).

Finally, as in current practice, if the CO determines that the employer's wage offer is less than the wage rate that must be offered to satisfy H-2A program requirements (e.g., the wage offer is less than the highest of the wage sources

listed in 20 CFR 655.120(a), including the AEWR determination applicable to the H-2A job opportunity), the CO will issue a Notice of Deficiency alerting the employer to the issue and providing an opportunity for the employer to amend its wage offer. If the employer chooses not to amend its wage offer, the CO will deny the application for failure to satisfy criteria for certification, and the employer may appeal the final determination. If the SOC code assigned to the H-2A job opportunity is material to the CO's final determination, the employer may contest the SOC code assessment on appeal.

The Department anticipates the additional clarifying guidance contained in this interim final rule regarding occupational classification in the H-2A program will reduce the risk of CO or SWA misclassification of job opportunities, ensure greater consistency and predictability for employers to prepare their job offers, and provide more accurate, market-based wages are used to determine the AEWRs that protect the wages paid to agricultural workers in the H-2A program reflect market wages paid to workers in the U.S. similarly employed.