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Immigration Law

Judge Blocks H-2A Wage Freeze: UFW v. DOL

Maria Dinzeo, CNS, Dec. 24, 2020

"Farm workers won an eleventh-hour reprieve from a Department of Labor rule that would freeze their wages for the next two years. The new rule published by the Labor Department last month locks in at 2019 levels the minimum wage employers must pay foreign agricultural workers with H-2A visas, known as the adverse effect wage rate.  Beginning in 2023, the Labor Department also seeks to tie future wage increases to the generic employment cost index instead of relying on the Farm Labor Survey, causing wages to rise at an even slower rate. But U.S. District Judge Dale Drozd blocked the rule from taking effect in a ruling Wednesday because the department failed to justify its desire to freeze wages at below-market rate and did not adequately study whether the rule would also lead to wage stagnation among U.S. farmworkers."

DOL, Dec. 24, 2020

"On December 23, 2020, the U.S. District Court for the Eastern District of California issued an order in United Farm Workers, et al. v. DOL, et al., No. 20-cv-01690, enjoining the Department of Labor from implementing the Final Rule, Adverse Effect Wage Rate Methodology for the Temporary Employment of H-2A Nonimmigrants in Non-Range Occupations in the United States (H-2A AEWR FR), 85 FR 70445 (Nov. 5, 2020).  The court’s order prevents the Department from further implementing the H-2A AEWR FR, which took effect on December 21, 2020, and ordered the Department to use the methodology established by the Department’s 2010 H-2A regulation to establish the hourly AEWRs for all non-range occupations. Effective immediately, and until further notice, H-2A job orders filed with the State Workforce Agency serving the area of intended employment, as set forth in 20 CFR 655.121, on or after December 21, 2020, including job orders filed concurrently with an Application for Temporary Employment Certification to the OFLC National Processing Center for emergency situations under 20 CFR 655.134, must use the AEWRs in effect on December 20, 2020."