Last week, the Department of Labor (DOL) finalized a new rule changing the methodology for how H-2A Adverse Effect Wage Rates (AEWRs) are determined. This rule will be effective on March 30, 2023, and will only apply to new job orders submitted after that date. Again, if your job order was submitted before March 30, your application was processed under the old methodology, and this will apply to your filing next year.

The DOL will continue to update the wage data yearly as it has been doing (AEWR update around January 1 and Occupational Employment and Wage Statistics (OEWS) update around July 1). According to the new rule, if the wage increases during a work contract period, the higher wage must be paid, and if the wage is lowered during the period, the advertised wage rate must still be paid.

The DOL assures H-2A users that, for the vast majority of users, there will be no change as it relates to the wage methodology. For those job opportunities that involve field and livestock workers engaged in basic job duties, the agency indicates there should not be significant changes and the DOL will continue to use the Farm Labor Survey to determine the AEWR, as done in the past. This includes duties such as the following: plant, tend, pack, harvest field crops, fruits, vegetables, nursery and greenhouse or other crops, tend livestock, or operate farm machinery, operating under the following Standard Occupational Classification (SOC) titles and codes:

• 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).

However, for all other occupations, the DOL will assign a statewide annual average gross hourly wage based on the OEWS survey. This will likely be a higher wage in most instances. If the job opportunity has multiple duties that cause the opportunity to be classified in multiple occupations, the highest rate will apply. As such, the DOL anticipates that some employers may want to separate applications limiting the job duties or find other alternatives outside of H2A for accomplishing certain tasks.

Truck Driving Duties

H-2A job orders that include duties involving hauling crops on public roads, operating semi-trucks or CDL requirements will likely result in the assignment of a Light Truck Drivers (53-3033) or Heavy and Tractor-Trailer Truck Drivers (53-3032) OEWS wage. For H-2A job orders that contain a blend of public road hauling duties or CDL requirements with traditional field work, DOL will likely assign the higher OEWS wage rate. This will need to be reviewed on a case-by-case basis.

Below is a list of OEWS wage rates for select states for truck drivers classified as Heavy and Tractor-Trailer Truck Drivers (53-3032). Although these are the current rates, DOL adjusts these rates every July.

• California: $25.06 per hour
• Colorado: $25.73 per hour
• Florida: $21.63 per hour
• Hawaii: $26.05 per hour
• Illinois: $26.32 per hour
• Massachusetts: $25.99 per hour
• Nevada: $24.45 per hour
• New Jersey: $27.09 per hour
• New York: $26.63 per hour
• Texas: $23.15 per hour
• Vermont: $24.59 per hour
• Wisconsin: $24.39 per hour

It should be noted that some driving duties are contemplated under the Agricultural Equipment Operators (45-2091) SOC code. Specifically, “drive trucks to haul crops, supplies, tools, or farm workers.” This can include driving workers from housing to the worksite, as long as this does not include driving workers to work on public roads, in a van used exclusively for passenger transport. The latter could result in the assignment of Shuttle Drivers and Chauffeurs (53-3053) classification based on OEWS wage data.

Likewise, where the job tasks, qualifications and requirements indicate skilled construction work will be performed on the farm, an OEWS wage could be assigned for Construction Laborers (47-2061), or even something more specialized, like Cement Masons and Concrete Finishers (47-2051). Further, advanced and complicated tasks like fabrication, electrical wiring and similar tasks could be assigned an OEWS wage for Farm Equipment Mechanics and Service Technicians (49-3041).

Your team at Harris Beach will be reviewing your application duties in the upcoming season to discuss potential implications of the new rule on your H-2A filing. If you have any questions, please feel free to reach out at h2@harrisbeach.com. If you have other immigration-related questions, please reach out to our New York immigration attorneys Jarrod M. Sharp at (518) 701-2783 and jsharp@harrisbeach.com, and L.J. D’Arrigo at (518) 701-2770 and
ldarrigo@harrisbeach.com.