Rescinding the Farmworker Protection Rule, DOL Address Changes, Adverse Effect Wage Rate Updates and Temporary Suspension of Certification Fees
Summer may be synonymous with sand, picnics, grilling and camps, but that is not everything that happens during summer. At least, that is, during this summer. While you may have been enjoying the long summer days, the H-2A visa program has been undergoing significant changes.
Rescinding the Farmworker Protection Rule
First and foremost, on June 20, 2025, the U.S. Department of Labor Wage and Hour Division (“WHD”) released a memorandum related to the enforcement of the H-2A Farmworker Protection Rule.[1] Specifically, the Field Assistance Bulletin aimed to provide guidance to WHD field staff regarding the final rule, Improving Protections for Workers in Temporary Agricultural Employment in the United States, published April 29, 2024. It was announced that “effective immediately, WHD will suspend enforcement of all provisions introduced in the 2024 H-2A Final Rule.” The regulations in existence prior to the implementation of the new rule will be once again used to determine employer compliance.
The Employment and Training Administration (ETA) of the Department of Labor along with the WHD took the announcement from June 20 a step further by proposing a rule in the Federal Register on July 2, 2025, which would amend the regulations by fully rescinding the provisions from the H-2A Farmworker Protection Rule.[2] Comments will be accepted through September 2, 2025. According to the notice, the previous rule adopted:
[U]nnecessary, burdensome and costly requirements on employers. Specifically, these provisions include, but are not limited to, substantial new requirements associated with the material terms and conditions offered by employers to H-2A workers that are not commonly provided to other U.S. workers, including progressive discipline policies for cause-based employment terminations, anti-retaliation measures for certain workers engaged in self-organization and other concerted activities, and expanding the authority and scope for a State Workforce Agency (SWA) to discontinue employment services to employers, which prevents those employers from accessing the H-2A program, while eliminating employers’ option to request a hearing prior to the SWA’s final determination. Further, the final rule imposed extensive highly-sensitive data collection requirements on employers related to their use of foreign labor recruiters, including personal names and physical addresses abroad, as well as detailed personal information associated with all owners of the employers, operators of the place(s) of employment, and supervisor(s) and manager(s) of workers employed under the terms of the work contract, with very limited or no practical utility to the agency’s statutory decision making.
DOL Address Changes
On June 30, 2025, the DOL ETA announced the Office of Foreign Labor Certification (OFLC) is changing the mailing address for its temporary programs, including the H-2A program, to Washington D.C. from the prior address in Chicago, IL.[3] The address will officially change on August 29, 2025. The new centralized mailing address will be the following: U.S. Department of Labor, Employment and Training Administration, Office of Foreign Labor Certification, 200 Constitution Avenue NW, Room N-5311, Washington, DC 20210. According to the announcement, due to the expanded use of the electronic filing system and electronic communications, the OFLC is able to consolidate incoming mail into a single physical location.
Adverse Effect Wage Rate Updates
On July 11, 2025, the DOL ETA issued a notice in the Federal Register pertaining to the annual announcement regarding the Adverse Effect Wage Rates (AEWR) for H-2A workers outside of the herding or production of livestock on the range.[4] Specifically, the wage announcement placed employers on notice related to the new wage rates that were published pursuant to the wage data reported through the Occupational Employment and Wage Statistics (OEWS) survey. The impacted AEWRs are those outside of the six codes pertaining to the field and livestock workers used for the majority of H-2A users. Those other six SOC codes that encompass the field and livestock workers group are based on the USDA Farm Labor Survey (FLS) and have a separate notice published each year. This OEWS notice reminded employers that when the AEWR is updated during a work contract, and it is higher, the employer must pay the higher rate, but when it is lower, the employer must continue to pay at least the wage rate advertised on the job order. The wage rate is “determined using the statewide annual average hourly gross wage for the SOC code for the State, or equivalent district or territory, as reported by the OEWS survey.” The notice also provided the OEWS wage rates for regions where the annual average hourly gross wage is not reported by the FLS:
State/district/territory AEWRs
Alaska .............................................. $20.04
District of Columbia ......................... 20.79
Guam ................................................ 10.67
Puerto Rico ....................................... 10.36
U.S. Virgin Islands ........................... 13.69
Temporary Suspension of Certification Fees
Last, but not least, on July 31, 2025, the DOL announced the temporary suspension of H-2A certification fees for H-2A employers, as of September 2, 2025.[5] The DOL indicated that employers who receive an invoice from OFLC must still pay all required certification fees, but OFLC will cease submitting invoices to H-2A employers. OFLC will also not request reimbursement of any certification fees that would have come due during the suspension period. Unfortunately, this is just a temporary situation while the OFLC modernizes its payment process to transition to an electronic payment system. Once the new system is in place, a new notice will be published with instructions regarding the new payment process.
[1] https://www.dol.gov/sites/dolgov/files/WHD/fab/fab2025-2.pdf
[2] https://www.govinfo.gov/content/pkg/FR-2025-07-02/pdf/2025-12315.pdf
[3] https://www.federalregister.gov/documents/2025/06/30/2025-12023/change-of-physical-mailing-address
[4] https://www.govinfo.gov/content/pkg/FR-2025-07-11/pdf/2025-12910.pdf
[5] https://www.govinfo.gov/content/pkg/FR-2025-07-31/pdf/2025-14510.pdf
