United States | OFLC posts update on H-2A wage rate interim final rule changes following court order

The U.S. Department of Labor’s (DOL) Office of Foreign Labor Certification (OFLC) announced on Sept. 2, 2026, pending updates to the implementation of its interim final rule (IFR) on H-2A Adverse Effect Wage Rate (AEWR) methodology following an Aug. 26, 2026, order from the U.S. District Court for the Eastern District of California in United Farm Workers, et al. v. DOL, et al. (No. 25-cv-01614-KES-EGC).

Key takeaways:

Back wage adjustment payments may be required from certain H-2A employers pending litigation outcomes. According to the update, the notice reads as follows:

“Employers who hired or otherwise utilized H-2A labor that was governed by AEWRs published under the IFR between the date [of this notification] and the date on which a new AEWR methodology is issued pursuant to this Order (the ‘backpay period’) may be required to make wage adjustment payments to qualifying H-2A workers and U.S. farmworkers in corresponding employment who worked during the backpay period, if those workers received an hourly wage below the new, applicable AEWRs generated under the new methodology.”

Court ruling found IFR unlawful and required new methodology. The court found the DOL’s October 2025 interim final rule establishing the AEWR methodology unlawful and directed the department to develop and publish a new methodology and corresponding wage rates. The court did not vacate the current rule or existing AEWRs.

Potential future liability period identified. The court ordered the DOL to notify employers that wage adjustment payments may be required in the future for workers employed during the period beginning Sept. 2, 2026, and ending when new AEWRs are issued, if the future rates are higher than wages paid during that period.

No current back wage obligation exists. The announcement emphasized that employers are not required to make any back wage payments at this time and that current AEWRs remain in effect until new rates are published.

Additional information: OFLC reminded employers to maintain complete and accurate records for H-2A workers and U.S. workers in corresponding employment, including contact information and other identifying information, to facilitate any potential future wage adjustments.

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

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