United States | 2023 H-2A AEWR final rule vacated by federal court impacts agricultural employers

The Office of Foreign Labor Certification (OFLC) announced an update to implementation of the 2023 H-2A Adverse Effect Wage Rate (AEWR) final rule following a district court’s recent order vacating the final rule.

Key Points:

• The 2023 H-2A AEWR final rule revised the methodology for determining a nonnegotiable minimum wage rate for non-range H-2A workers and workers in corresponding employment. Non-range occupations include all occupations other than herding and livestock production on the range. The 2023 methodology was intended to reasonably balance regulatory goals of providing employers with an adequate supply of legal agricultural labor and protecting the wages and working conditions of U.S. workers similarly employed.
• On Aug. 25, 2025, the U.S. District Court for the Western District of Louisiana vacated the 2023 H-2A AEWR final rule methodology governing H-2A non-range occupations, finding it “arbitrary and capricious in violation of the Administrative Procedure Act,” and converted the previous preliminary injunction against the rule into a permanent injunction.
• AEWRs will now be determined using the methodology outlined in the 2010 rule.
• The Department of Labor (DOL) is taking steps to implement the court’s order and will issue further guidance via announcements and Federal Register notices.

Additional Information: The FAQ published in 2010 regarding the 2010 final rule can be viewed here.

The H-2A visa program allows U.S. agricultural employers to bring foreign nationals to the U.S. for temporary or seasonal agricultural work. Recently, the Employment and Training Administration of the DOL announced a temporary suspension of H-2A certification fee collection, effective today, Sept. 2, 2025.

This alert has been provided by the BAL U.S. Practice Group.

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