USCIS and DOL Announces New Rules under H-2A Program

Effective October 2, U.S. Citizenship and Immigration Services (USCIS) and the Department of Labor (DOL) announced new rules to streamline the process to register temporary foreign agricultural workers and update the methodology calculating the rates at which employers must pay them. Under the H-2A Temporary Agricultural Program, an entity who expects a shortage of domestic workers can hire a nonimmigrant foreign worker to perform seasonal agricultural work. The employer must petition both agencies to issue certifications that enable the laborer to legally perform seasonal agricultural work. Temporary foreign agricultural laborers are an increasingly vital part of farm operations; a Government Accountability Office report states that the Department of State issued over 50% more visas in FY2023 than in FY2018. 

The USCIS rule enables employers to file the necessary petitions with both USCIS and DOL at the same time. This change will enable employers to progress through the submission process more quickly and for the two agencies to adjudicate cases on a shorter timeline. The DOL interim final rule, on the other hand, changes the methodology it uses to calculate the hourly Adverse Effect Wage Rates (AEWR) for temporary foreign H-2A workers. Instead of using the Department of Agriculture’s Farm Labor Survey, DOL will now use the Bureau of Labor Statistics Occupational Employment and Wage Statistics survey. The rule also requires DOL to account for the role that non-monetary compensation, such as free housing, plays in compensating H-2A workers. 

For more information about the USCIS rule, click here. More information about the DOL rule can be found here.