DOL ISSUES INTERIM FINAL RULE REVISING AEWR METHODOLOGY IN H-2A PROGRAM

The U.S. Department of Labor (DOL) has released an Interim Final Rule (IFR) revising how Adverse Effect Wage Rates (AEWR) are determined for the H-2A temporary agricultural worker program. The update comes in response to industry lawsuits against the 2023 AEWR Rule and the U.S. Department of Agriculture’s (USDA) discontinuation of the Farm Labor Survey.

New AEWR Methodology: Shift to BLS Data

Under the IFR, the DOL will now rely on wage data from the Bureau of Labor Statistics (BLS) Occupational Employment and Wage Statistics (OEWS) survey to set AEWRs, replacing USDA's Farm Labor Survey. This change applies primarily to non-range agricultural occupations and aims to improve consistency and address concerns over fairness and methodology.

For the majority of H-2A roles, DOL will assign AEWRs based on five Standard Occupational Classification (SOC) codes that consolidate the most common field and livestock jobs. These rates will be broken into two skill-based categories, reflecting differences in job qualifications and duties as described in employers' job offers.

For other less common agricultural occupations, OEWS data will similarly be used to determine two skill-tier AEWRs per SOC code, depending on the duties performed for the majority of the contract period.

Accounting for Housing Benefits

Recognizing that many H-2A employers provide free housing, the DOL is also introducing a standard adjustment factor to the AEWR. This adjustment reflects the value of employer-provided housing and aims to align the wages of H-2A workers with U.S. workers who may not receive such in-kind benefits.

According to DOL estimates, this rule change could lead to annual employer savings of $2.46 billion and $17.29 billion over the next decade.

JPH Law Firm Overview of New Wage Levels by State

DHS Final Rule: Streamlined H-2A Petition Filing

In a parallel move, the Department of Homeland Security (DHS) has finalized a rule effective October 2, 2025, to streamline the H-2A filing process. The rule allows U.S. Citizenship and Immigration Services (USCIS) to begin processing electronically filed petitions for unnamed beneficiaries once the DOL issues a Notice of Acceptance for the Temporary Labor Certification (TLC)—without waiting for final TLC approval.

Key changes include:

• Introduction of Form I-129H2A, a new digital-only petition form.
• Only electronic submissions without Form G-28 (attorney representation) are currently accepted.
• The change is aimed at improving flexibility and speeding up processing, though USCIS will not approve petitions until DOL has approved the TLC.

USCIS emphasizes this move supports legal labor migration while safeguarding American jobs.

Potential Government Shutdown: What Happens to the H-2A Program?

While most H-2A-related agencies are fee-funded and can operate during a government shutdown, critical parts of the program are vulnerable:

Agencies Affected by a Shutdown:

1. DOL – Office of Foreign Labor Certification (OFLC)
   • Fully reliant on Congressional funding; will cease operations if no funding resolution is passed.
   • A shutdown could delay H-2A application processing, job order reviews, and housing inspections, affecting employers with late 2025 start dates.
   • DOL systems (e.g., iCERT) would go offline, with no paper applications accepted.
   • Backlogs could strain OFLC post-shutdown, especially near the H-2B January 1 peak filing window.
2. E-Verify Program
   • Would shut down entirely, halting online verifications.
   • Employers must still complete Form I-9s, entering data later once systems resume.

Agencies Unaffected:

• USCIS: Will continue processing H-2A applications.
• Department of State (DOS): Visa issuance continues, though extended shutdowns could reduce capacity.
• Customs and Border Protection (CBP): Deemed essential; ports of entry remain open.

Bottom Line

The DOL's updated AEWR rule represents a major shift in wage-setting methodology for the H-2A program, intended to modernize data sources and reflect actual labor conditions. Meanwhile, DHS's streamlined filing process marks a significant procedural improvement for agricultural employers navigating tight seasonal timelines.

However, with the length of the federal shutdown unknown, employers depending on OFLC approvals could face serious disruptions, reinforcing the importance of early filing and contingency planning in the months ahead.

For more information follow @AgWorkCoalition on X.