United States | DOL’s Interim Final Rule substantially changes H-2A wage calculations, open to public comment

Following the vacating of the 2023 H-2A Adverse Effect Wage Rate (AEWR) final rule by a federal district court on Aug. 25, the Department of Labor (DOL) issued an Interim Final Rule (IFR) in the Federal Register effective Oct. 2, ultimately impacting the wages of certain H-2A workers by “revising the methodology for determining the hourly Adverse Effect Wage Rates (AEWRs) for non-range occupations by using wage data reported for each U.S. state and territory by the Department’s Bureau of Labor Statistics (BLS) Occupational Employment and Wage Statistics (OEWS) survey.”

Key Points:

• AEWRs for “non-range” H-2A occupations will now be based on OEWS survey data, which provides state-level wage estimates across occupations.
• The DOL will use OEWS survey data to establish AEWRs applicable to five Standard Occupational Classification (SOC) codes, combining the most common field and livestock worker occupations previously measured by the U.S. Department of Agriculture’s Farm Labor Survey.
• To account for wage disparities resulting from qualifications contained within the employer’s job offer, the newly established AEWRs for the majority of H-2A occupations will be divided into two skill-based categories:
  • Skill Level I (Entry-Level): Based on the 17th percentile wage, for roles requiring minimal training or experience.
  • Skill Level II (Experienced): Based on the median wage, for roles requiring certifications or specialized duties.
• A standard adjustment factor will be implemented to the AEWRs when compensating certain H-2A workers to account for nonmonetary compensation for employer-provided housing at no cost.
• Public comments on this rule can be submitted on or before Dec. 1, 2025, here.

Additional Information: According to the IFR, “non-range” occupations include “all occupations other than herding and production of livestock on the range.” The H-2A visa program allows U.S. agricultural employers to bring foreign nationals to the U.S. for temporary or seasonal agricultural work.

Learn how BAL’s H-2 legal team can help your business best navigate changing H-2A policies and regulations and avoid costly disruptions in your operations.

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

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