May 16, 2022May 16, 2022May 16, 2022

Immigration Law Update: H-2A Visa

May 16, 2022

A district court vacated the Department of Labor’s final rule Adverse Effect Wage Rate Methodology for the Temporary Employment of H-2A Nonimmigrants in Non-Range Occupations in the United States (85 FR 70445, 11/5/20), and remanded the rule to DOL for further rulemaking consistent with the order. (United Farm Workers, et al. v. DOL, et. al., 4/4/22).

The Department of Labor had proposed a final rule to use farm labor surveys to establish adverse effect wage rates for most H-2A jobs while using Occupational Employment and Wage Statistics data for occupations where survey data is unavailable.

The proposed final rule also recognized that employers must pay the wage for the highest-paid occupation performed by an H-2A worker when their role covers multiple occupation classifications.

The court concluded in this case that the proposed final rule is arbitrary and capricious because the DOL failed to offer a reasoned explanation in the final rule for its imposition of a two-year wage freeze and failed to analyze the economic effects of the new AEWR methodology on U.S. workers.

Further, the district court issued a supplemental order requiring DOL to publish the AEWR for 2021 in the Federal Register on or before February 25, 2021, using the methodology set forth in the 2010 rule and to make those AEWRs effective upon their publication.

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Immigration Law Update: H-2A Visa

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