This article was prepared with the assistance of ABIL, the Alliance of Business Immigration Lawyers, of which Loan Huynh, Fredrikson Immigration Department Chair, is a member.
The Department of Labor (DOL) released frequently asked questions (FAQs) on a final rule published February 28, 2023, and effective March 30, 2023, revising the methodology by which it determines the hourly Adverse Effect Wage Rates (AEWRs) for non-range agricultural occupations (i.e., all occupations other than herding and production of livestock on the range).
The FAQs note, among other things, that:
- OFLC encourages employers to monitor each of the wage sources that affect their H-2A wage obligation from the time of job order submission (or signing a work contract) until the last date an H-2A agricultural worker or worker in corresponding employment is employed under the H-2A job order “to ensure that they are in compliance with the obligation to offer, advertise, and pay workers a wage rate that is at least equal to the highest rate among the sources at all times.”
- Any adjustment to an AEWR applicable to an employer’s job opportunity, based on the Standard Occupational Classification (SOC) code(s) assigned to the job opportunity before certification, may affect the employer’s wage obligations during the work contract period. “Whether an employer’s H-2A program certification was adjudicated using the 2010 AEWR methodology or the 2023 AEWR methodology, the employer’s wage obligation during the work contract period, including any extension granted, is subject to increase if the OFLC Administrator publishes an adjusted AEWR during the work contract period and the new AEWR is higher than the approved wage rate listed on the employer’s job order and/or work contract.”
- An employer must pay H-2A workers and workers in corresponding employment at least the certified wage rate throughout the work contract period. The FAQ notes that DOL’s H-2A regulations “prohibit contract terms that would decrease the wage paid in the event an adjusted AEWR or prevailing wage rate is lower than the offered rate.”