The Department of Labor’s (DOL) Employment and Training Administration (ETA) is amending its regulations, effective December 21, 2020, to revise the methodology by which it determines the hourly Adverse Effect Wage Rates (AEWRs) for non-range agricultural occupations performed by temporary foreign workers in H-2A nonimmigrant status using wage data reported by the Department of Agriculture’s Farm Labor Survey (FLS) and the Bureau of Labor Statistics’ Occupational Employment Statistics survey.
DOL said it intends to address the remaining proposals from the July 26, 2019 proposed rule in a subsequent, second final rule governing “other aspects of the certification of agricultural labor or services to be performed by H-2A workers and enforcement of the contractual obligations applicable to employers.” DOL focused this final rule on “the immediate need for regulatory action to revise the methodology by which it determines the hourly AEWRs for non-range agricultural occupations before the end of the calendar year.”
The agency noted that USDA’s suspension of planned October data collection for the FLS and release of the report planned for the November 2020 cycle is the subject of ongoing litigation. That litigation challenges whether USDA provided adequate reasons for its decision to suspend data collection and whether it considered important aspects of its decision. A district court recently ordered USDA to proceed with the collection of FLS data for 2020, but DOL said USDA is not required to perform the FLS regardless of the litigation.
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