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September 6, 2022Â
Austin, TX – The Department of Labor (DOL) announced a change to the methodology for the calculations of the wage rates for several H-2A Visa SOC codes. This change has significant financial implications for several agricultural industries that rely on H-2A visa workers.
The wage rate for H-2A visa workers is currently determined by the Adverse Effective Wage Rate. Unlike H-2B visas, these state-wide wage rates are inflated because of the density of the job opportunities in the urban areas versus the rural areas. Additionally, unlike H-2B, in the H-2A program the employers are required to provide housing and transportation at no cost to the workers.
These agricultural visas are critical to supporting numerous industries that are already experiencing the consequences of inflation and domestic labor shortages. The DOL’s tone deaf approach towards agricultural production would be catastrophic for agricultural producers, particularly in the Midwest.
The proposed rule change by the DOL would shift the methodology to base wage rates on OEWS survey, similar to how H-2B visa wages are determined, except less precise and without the processes designed to ensure fairness. Undoubtedly, this will increase the wages for SOC codes across several industries, including trucking and agricultural construction.
Additionally, as a result of this rule change, the DOL would be capable of re-coding positions and the associated wage rates that have historically fallen under one SOC code, to assign higher wage rate SOC codes. For example, any positions that have previously included Commercial Drivers Licenses, but not as a primary function of the position and were coded as a lower wage SOC Code, such as Agricultural Equipment Operators (SOC Code 45-2091), may be assigned the SOC Code associated with CDLs and a higher wage rate. Further, the only guidance the DOL has given State Workforce Agencies in assigning wage rates is to look at the job duties and assign the SOC Code with the highest wage rate.
The following SOC codes are excluded by this proposed rule:
Farmworkers and Laborers, Crop, Nursery and Greenhouse Workers (45-2092); Farmworkers, Farm, Ranch, and Aquacultural Animals (45-2093); Agricultural Equipment Operators (45-2091); Packers and Packagers, Hand (53-7064); Graders and Sorters, Agricultural Products (45-2041); and All Other Agricultural Workers (45-2099).
This proposed rule does not allow businesses to appeal the wage rate associated with the assigned SOC code. Appeals of the DOL determined SOC code cannot be made until after the visa application is denied.
These changes would directly impact a large swath of agricultural businesses, including but not limited to agricultural construction, grain producers and livestock farmers, and any associated transportation for agricultural businesses.
In response, Farmer Law PC is seeking to lead a legal effort to prevent the implementation of this rule. If you would like to learn more about Farmer Law PC’s response and invest in this action plan you can:
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Maybe you met on a sightseeing trip, or perhaps in a semester-long study abroad program. A friend’s destination wedding. A…
Maybe you met on a sightseeing trip, or perhaps in a semester-long study abroad program. A friend’s destination wedding. A…
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