The U.S. Department of Labor (DOL) has published the 2023 Adverse Effect Wage Rates (AEWR) for the employment of temporary or seasonal nonimmigrant foreign workers (H-2A workers) to perform agricultural labor or services other than the herding or production of livestock on the range.
Starting January 1, 2023, the AEWRs to be paid for H-2A workers are as follows:
- Arizona $15.62
- California $18.65
- Colorado $16.34
- New Mexico $15.62
AEWRs are the minimum wage rates the DOL has determined must be offered and paid by employers to H-2A workers and workers in corresponding employment. DOL’s H-2A regulations[i] provide qualifying workers must be paid at least the highest of:
- The AEWR;
- A prevailing wage rate if the Office of Foreign Labor Certification (OFLC) Administrator has approved a prevailing wage survey for the applicable crop activity or agricultural activity and, if applicable, a distinct work task or tasks performed in that activity;
- The agreed-upon collective bargaining wage rate;
- The Federal minimum wage rate; or
- The State minimum wage rate, whichever is highest, for every hour or portion thereof worked during a pay period.
Further, when the AEWR is adjusted during a work contract and is higher than the highest of the previous wage rate (whether determined using AEWR, a prevailing rate for the crop activity or agricultural activity and, if applicable, a distinct work task or tasks performed in that activity and geographic area, the agreed-upon collective bargaining wage, the Federal minimum wage rate, or the State minimum wage rate), the employer must pay at least that adjusted AEWR upon the effective date of the new rate, as provided in the applicable Federal Register Notice.[ii]
Similarly, when the AEWR is adjusted during a work contract and lower than the wage rate that is guaranteed on the job order, the employer must continue to pay at least the wage rate guaranteed on the job order.[iii]