New H-2A Rule on Wages for Foreign Agricultural Workers Finalized

UPDATE:  On November 30, 2020, the United Farmer Workers filed a lawsuit in federal court challenging the new rule, arguing that it will adversely affect wages for farm workers, as explained here.  On December 23, 2020, the court issued an injunction blocking implementation of the new rule.

On November 5, 2020, the Department of Labor released a final rule affecting the Adverse Effect Wage Rate  (AEWR) used to determine the rate of pay that employers seeking visas for H-2A temporary agricultural workers.   The new rule will take effect on December 21, 2020.

The AEWR is a wage below which employers may not pay agricultural workers. The rule freezes the AEWR at the 2020 rate through calendar year 2022, after which the AEWR will be adjusted annually at the Bureau of Labor Standards’ Cost Index rate.   The Department of Labor has issued a FAQs on the implementation of the new rule, which can be found here.

The new rule effectively allows the pay of H-2A agricultural workers, who are essential to the U.S. food supply chain, to be frozen for the next two years, even while working during the pandemic.

This analysis looks in more detail at the rule and its potential impact.   For an overview of the functioning of the H-2A program , see this Cato Institute policy brief.