May 23, 2023
Adverse Effect Wage Rate (AEWR) Methodology for
Temporary Employment of H-2A Nonimmigrants in the
United States
Introduction
meet these requirements are referred to as non-range
The H-2A visa program allows for the temporary admission
occupations.
of foreign workers to the United States to perform
agricultural labor or services of a seasonal or temporary
DOL AEWR Methodology: Range
nature. (See CRS Report R44849, H-2A and H-2B
Occupations
Temporary Worker Visas: Policy and Related Issues for a
As noted, DOL calculates a monthly AEWR for range
discussion of the H-2A visa program.)
occupations. For H-2A program purposes, range
occupations involve the herding or production of livestock,
Before filing a visa petition with the Department of
which is performed on the range for more than 50% of the
Homeland Security (DHS), a prospective H-2A employer
workdays in the work contract period, and generally require
must apply to the Department of Labor (DOL) for labor
the workers to be on-call 24 hours per day, 7 days per week.
certification. Per 8 U.S.C. §1188(a)(1), before approving a
DOL provides for a monthly AEWR given the unique
labor certification application, DOL must determine that
nature of such occupations, which makes the recording of
•
work hours difficult.
there are not sufficient workers who are able, willing,
and qualified, and who will be available at the time and
The monthly rate for herding and range livestock
place needed, to perform the agricultural labor or
occupations was initially calculated in 2016 as $7.25 per
services for which an employer desires to hire
hour (i.e., the federal minimum wage) multiplied by 48
temporary foreign workers (H-2A workers); and
hours per week, and then multiplied by 4.333 weeks per
•
month. Since 2017, the monthly AEWR for range
the employment of the H-2A workers will not adversely
occupations is adjusted annually based on growth in the
affect the wages and working conditions of workers
Bureau of Labor Statistics (BLS) Employment Cost Index
similarly employed in the United States (e.g., by
(ECI) for private sector wages and salaries over the
lowering wages).
preceding September-to-September (12-month) period. For
example, the 2022 AEWR for range occupations was
The Immigration and Nationality Act, which authorizes the
$1,807.23. Between September 2021 and September 2022
H-2A program, does not specify a method by which the
the ECI increased by 5.2%. The monthly AEWR for range
Secretary of Labor is to make these determinations. To
occupations was adjusted to $1,807.23 x (100%+5.2%) =
ensure there are not sufficient U.S. workers who are
$1,901.21, effective January 1, 2023.
qualified and available to perform the work, DOL requires
employers to advertise and engage in positive recruitment
DOL AEWR Methodology: Non-range
of U.S. workers for the H-2A job opportunity, and to offer
Occupations
U.S. workers terms and working conditions that are not less
AEWRs for non-range occupations are calculated using
favorable than those offered to H-2A workers. To guard
wage data collected through the Department of
against adverse effects on similarly employed U.S. workers,
Agriculture’s Farm Labor Survey (FLS) and the BLS
DOL requires employers to offer wages at or above the
Occupational Employment and Wage Statistics (OEWS)
highest of five wages levels: (1) the adverse effect wage
survey.
rate (AEWR), (2) the applicable prevailing wage rate, (3)
an agreed-upon collective bargaining wage rate, (4) the
Field and Livestock Workers (Combined)
federal minimum wage rate, or (5) the applicable state
DOL calculates a single AEWR per state for workers who
minimum wage rate. DOL regulations govern the offered
perform tasks covered by occupations included in the FLS
wage rate and provide the methodologies for determining
field and livestock workers (combined) category. The
AEWRs and prevailing wage rates.
AEWR for such workers is the annual average hourly gross
wage in the state or region.
For many H-2A workers, the applicable AEWR is a state-
level, hourly rate that is based on labor force survey data.
The field and livestock workers (combined) category
However, a monthly AEWR is used for certain
contains jobs with the following Standard Occupational
occupations—referred to as range occupations—that
Classification (SOC) codes and titles:
involve the herding or production of livestock on the range
and under certain working conditions. For the purpose of H-
• 45-2041 Graders and Sorters, Agricultural Products;
2A labor certification, agricultural occupations that do not
• 45-2091 Agricultural Equipment Operators;
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Adverse Effect Wage Rate (AEWR) Methodology for Temporary Employment of H-2A Nonimmigrants in the United States
• 45-2092 Farmworkers and Laborers, Crop, Nursery,
Some H-2A jobs may require a combination of tasks that
and Greenhouse;
cannot be classified within a single SOC code. In such
•
cases, an H-2A job opportunity may be assigned two or
45-2093 Farmworkers, Farm, Ranch, and
more distinct SOC codes. If all assigned codes are included
Aquacultural Animals;
among the six SOC codes included in the field and
• 53-7064 Packers and Packagers, Hand; and
livestock workers (combined) category, then the AEWR is
•
the single AEWR calculated for field and livestock workers
45-2099 Agricultural Workers, All Other.
(combined) in the state. If a job is assigned codes with
Descriptions of the SOC definitions, skill requirements, and
different AEWRs, then the highest wage rate applies. For
tasks typically performed by workers in these occupations
example, if an H-2A job opportunity in California is
are available from the Occupational Information Network
classified as both a first-line supervisor of farming workers
(O*NET) website at https://www.onetonline.org/.
(SOC 45-1011), with an OEWS-based AEWR of $25.29,
and an agricultural equipment operator (SOC 45-2091),
The FLS excludes Alaska, the District of Columbia (DC),
with an FLS-based AEWR of $18.65, the prevailing AEWR
and all of the U.S. territories. The AEWR for field and
is $25.29 (i.e., the highest applicable rate).
livestock workers (combined) in Alaska, DC, Guam, Puerto
Rico, and the U.S. Virgin Islands is the statewide or
Publication Schedule
territory-wide annual average hourly gross wage in the state
As of March 30, 2023, DOL plans to publish separate
or territory (for occupations with these SOC codes) as
notices of AEWR adjustments in the Federal Register for
reported by the OEWS survey; or, if such a wage rate is not
rate adjustments based on FLS data and rate adjustments
reported by the OEWS survey, the AEWR is the national
based on OEWS data. DOL intends to publish FLS-based
annual average hourly gross wage as reported by the OEWS
AEWRs on or about January 1 and OEWS-based AEWRs
survey. Neither the FLS nor the OEWS survey collect data
on or about July 1. If the adjusted AEWR remains the
from—and consequently AEWRs are not calculated for—
highest of the five wage rates considered by DOL (i.e.,
other U.S. territories (i.e., American Samoa and the
AEWR, applicable prevailing wage rate, an agreed-upon
Commonwealth of the Northern Mariana Islands).
collective bargaining wage rate, the federal minimum wage
rate, or the applicable state minimum wage rate) and the
In April 2023, the AEWR for non-range occupations in the
adjusted AEWR is higher than the previous AEWR, then
field and livestock workers (combined) category ranged
the employer must pay at least the updated AEWR upon the
from $9.17 per hour (Puerto Rico) to $20.33 (DC). Among
effective date of the rate as published by DOL in the
states included in the FLS, the rates ranged from $13.67
Federal Register. If the updated AEWR is lower than the
(Alabama, Arkansas, Georgia, Louisiana, Mississippi, and
wage rate guaranteed on the H-2A job order, the employer
South Carolina) to $18.65 (California).
must continue to pay at least the guaranteed rate.
Other Non-range Occupations
Recent Regulatory History
For all non-range occupations other than those included in
On February 28, 2023, DOL published a final rule that
the field and livestock workers (combined) category, the
revised the methodology by which it determines the hourly
hourly AEWR is the statewide annual average hourly wage
AEWRs for non-range agricultural occupations; the rule
for the specific SOC code, as reported by the OEWS
took effect on March 30, 2023. Prior to March 30, 2023,
survey. If the OEWS survey does not report a statewide
DOL determined the AEWRs for non-range agricultural
annual average hourly wage for the SOC code, the AEWR
occupations using methods established by a 2010 rule. This
is the national annual average hourly wage reported by the
methodology used only FLS data for the field and livestock
OEWS survey.
workers (combined) category to calculate a single state-
level AEWR in each year for states included in the FLS.
Farm supervisors or managers, heavy truck drivers, farm
construction workers, and logging workers are examples of
The DOL 2023 rule responded to two primary concerns
agricultural occupations that are not included in the field
about the effectiveness of the previous methodology to
and livestock workers (combined) category; AEWRs for
prevent adverse effects on the wages of agricultural workers
such workers are based on OEWS survey data. For
in the United States. DOL observed that the methodology
example, as of April 2023 the AEWR for First-Line
did not take into account the wages paid to workers in jobs
Supervisors of Farming, Fishing, and Forestry Workers
outside the field and livestock workers (combined)
(SOC 45-1011) ranged from $21.64 (Puerto Rico) to $47.15
categories. For example, wages paid to relatively high-paid
(Tennessee); and the AEWR for Heavy and Tractor-Trailer
agricultural workers such as farm supervisors are excluded
Truck Drivers (SOC 53-3032) ranged from $10.96 (Puerto
from the calculation. In addition, the methodology did not
Rico) to $30.56 (Nebraska).
produce AEWRs for every state or territory where
employers may seek to employ H-2A workers (e.g., Alaska,
SOC Classification of H-2A Job Opportunities
Puerto Rico). DOL engaged in rulemaking to establish a
As part of labor certification, employers identify the tasks,
revised AEWR methodology to address these concerns.
duties, and requirements associated with work to be
performed by H-2A workers. DOL compares these with
Sarah A. Donovan, Specialist in Labor Policy
such information listed in O*NET and considers other
relevant factual information included in the employer’s
IF12408
application (e.g., special skill or license requirements) to
determine the SOC code or codes for the H-2A job.
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Adverse Effect Wage Rate (AEWR) Methodology for Temporary Employment of H-2A Nonimmigrants in the United States


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https://crsreports.congress.gov | IF12408 · VERSION 4 · NEW

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