Adverse Effect Wage Rate Methodology for the Temporary Employment of H-2A Nonimmigrants in Non-Range Occupations in the United States

The Department of Labor (Department or DOL) is issuing this interim final rule (IFR) to amend its regulations governing the certification of agricultural labor or services to be performed by temporary foreign workers in H-2A nonimmigrant status (H-2A workers). Specifically, the Department is 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. For the vast majority of H-2A job opportunities, the Department 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 (USDA) Farm Labor Survey (FLS), which covered six SOC codes. These AEWRs will be divided into two skill-based categories to account for wage differentials arising from qualifications contained in the employer's job offer. For all other occupations, the Department will use the OEWS survey to determine two skill-based AEWRs for each SOC code to reflect wage differentials. The threshold determination for assigning the SOC code(s) and applicable skill-based AEWR will be based on the duties performed for the majority of the workdays during the contract period and qualifications contained in the employer's job offer. Finally, to address differences in compensation between most U.S. workers and H-2A workers who receive employer-provided housing at no cost, the Department will implement a standard adjustment factor to the AEWR to account for this non-monetary compensation that employers will apply when compensating H-2A workers under temporary agricultural labor certifications.