A modified approach for calculating minimum wages for agricultural guest workers has been introduced by the U.S. Department of Labor (DOL). H-2A visa holders’ current proposed calculation was struck down in December 2020 due to issues with how long the wage would be frozen and the data source used to complete the calculation.
The provision that would have frozen minimum wages for two years is removed from the newest proposal. In addition, U.S. Department of Agriculture’s (USDA) Farm Labor Survey data is proposed as the data source rather than using the Bureau of Labor Statistics’ Economic Cost Index. The calculated wages will be used for livestock and field workers with H-2A visas.
In November 2020, the DOL first approached an overhaul to H-2A wages calculations for this classification of visa holders. At that time, the DOL proposed using the Bureau of Labor Statistics Dad rather than the USDA Farm Labor Survey information. In October 2020, the USDA stated they will no longer complete the survey that had been used for the calculation.
Lawsuits were filed against the DOL and the USDA by the United Farm Workers union. The suit challenged the decision to no longer complete the Farm Labor survey and the subsequent recalculation of wages. The union claims wages would be depressed or stagnant as a result.
The USDA was ordered to continue conducting the survey by a California district judge in October 2020. Per the Administrative Procedures Act, the USDA was no longer in compliance with rulemaking procedures if they canceled the survey. The DOL was blocked from implementing the rule two months later, on the basis that they did not provide valid reasons for the freezing of wages and using a different data source.
In the current DOL proposal, H-2A workers would be placed into two groups. Different field and livestock workers would be placed in separate categories, each subject to the same hourly wage based on USDA data. All other jobs that don’t fall into either field or livestock worker categories would use an occupation-specific calculation using the Occupational Employment and Wage Statistics data, collected by the Bureau of Labor Statistics.
Some believe that that DOL has concerns that guest workers are paid less than the industry’s prevailing wages. Some employers believe H-2A visa workers’ wage rate is high and the use of the USDA survey data leads to spikes in certain regions.
ILBSG continues to monitor ongoing proposals to policy for all immigration-related issues. If you have questions about any immigration issues, contact us. We put our expertise and experience to work for you to ensure you get the right advice.
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