The rule, which went into effect Oct. 2, reduces H-2A worker pay by $5-7 hourly, saving employers $2.46 billion yearly while pressuring American farmworkers’ wages and job security, according to the UFW, which says the new rule transfers wealth from workers to employers. The DOL previously estimated that the rule would save employers $2.46 billion yearly. The UFW contends in the lawsuit that it constitutes “a transfer of wealth from the workers to their employers.”
Plaintiffs claim the new rule is “unlawful, arbitrary and capricious,” as it violates both the statutory purpose of the guest-worker program and procedural protections under the Administrative Procedure Act (APA). Law360 reported that, according to the complaint, farmworkers said the DOL’s October interim final rule flouts the Administrative Procedure Act and severely cuts wages for immigrant workers, putting U.S. farmworkers’ future at stake by changing how the department calculates the so-called adverse effect wage rate.
“Farmworkers, and the rural communities across America they sustain, need and deserve fair wages and job security, not a race to the bottom with an endless supply of cheap foreign labor,” Teresa Romero, president of the UFW, said. “If this president will not fight for American farmworkers, then we will.” Attorneys representing the farm workers said that “rather than protect those farmworkers, the Department of Labor has unfortunately decided to issue a rule that will likely further depress their wages.” And one of the plaintiffs said, “the threat of guest workers is really concerning because they are planning to replace local workers with H-2A workers that will make finding work more difficult.”
H-2A Visa Program and AEWR
The H-2A visa program for temporary agricultural workers was created to prevent negative impacts on U.S. workers. It allows US agricultural employers who anticipate a shortage of farmworkers to bring foreign nationals to the country to fill temporary agricultural jobs. To participate in the H-2A program, employers must comply with the AEWRs (Adverse Effect Wage Rates) set out in DOL regulations to ensure that employing an H-2A worker does not adversely affect the wages and working conditions of domestic workers in similar positions.
For the past 40 years, DOJ calculated the AEWRs based on data from the USDA’s Farm Labor Survey (FLS) regarding average wages for farmworkers in a state or region. Law360 reported that the DOL has been setting the AEWR that employers should pay temporary foreign farmworkers. That rate estimates how much American workers would have pocketed in the market had the H-2A program not been around, according to the filing.
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According to the DOJ, which will calculate the AEWR for new H-2A job orders using a new skill-based and occupation-specific wage structure, it will result in “more precise market-based price floors.” It is designed to lower wage costs for H-2A agricultural employers and help prevent severe labor shortages across the farm industry.
New H-2A Wage Rule
Now, according to the complaint, the H-2A wage rule undercuts U.S. farm labor. The lawsuit argues that this new rule violates the law by putting U.S.-based farmworkers at a competitive disadvantage, undermining long-standing wage floors established under the guest-worker program. And it undermines the core statutory requirement that H-2A guest-worker wages must be set so they do not “adversely affect the wages and working conditions of U.S. workers similarly employed.
The case is United Farm Workers et al. v. U.S. Department of Labor et al., case number 1:25-at-01137, in the U.S. District Court for the Eastern District of California.
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