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March 16, 2023

DOL Publishes FAQ on New H-2A Wage Rule

 The U.S. Department of Labor has published a new Frequently Asked Questions (FAQ) regarding the final rule establishing a new methodology for determining hourly Adverse Effect Wage Rates (AEWRs) for non-range occupations for temporary labor certifications in the H-2A program.

Employers who submit an H-2A job order on or after March 30, 2023, will be subject to the new AEWR methodology for the job order and the related Form ETA-9142A. Therefore, employers who have submitted an H-2A job order or application before March 30, 2023, will not be subject to wage obligations under the new AEWR methodology until the Office of Foreign Labor Certification (OFLC) Administrator publishes the next AEWR adjustment applicable to the employer’s job opportunity.

Notably, the FAQ (#7) clarifies that H-2A employers are obligated to adjust the approved wage rate if the Department publishes a higher AEWR during the contract period.

Under the new AEWR methodology, the current Standard Occupational Classification (SOC) codes and titles associated with the following workers will continue to be subject to the traditional Farm Labor Survey (FLS) Wage setting approach. These codes and titles are: 45-2041 – Graders and Sorters, Agricultural Products; 45-2091 – Agricultural Equipment Operators; 45- 2092 – Farmworkers and Laborers, Crop, Nursery, and Greenhouse; 45-2093 – Farmworkers, Farm, Ranch, and Aquacultural Animals; 53-7064 – Packers and Packagers, Hand; and 45- 2099 – Agricultural Workers, All Other.

For all occupations other than field and livestock workers (combined), the hourly AEWRs will be set by the statewide annual average hourly wage for the SOC code, as reported by the Occupational Employment and Wage Statistics (OEWS) survey. If the OEWS survey does not report a statewide annual average hourly wage for the SOC, the AEWR will be the national annual average hourly wage reported by the OEWS survey.