Labor & Employment Law Daily Wrap Up, IMMIGRATION NEWS—DOL tells H-2A employers to preserve records as agency implements court order on AEWR rule, (Sep 3, 2026)

By Patricia K. Ruiz, J.D.

Current H-2A wage rates remain in effect, but employers may face future wage adjustment obligations depending on a replacement methodology ordered by a federal court.

The U.S. Department of Labor (DOL) has notified H-2A agricultural employers that they may be required to make future wage adjustment payments to certain H-2A and corresponding U.S. workers while the agency develops a new methodology for calculating Adverse Effect Wage Rates (AEWRs), as ordered by a federal district court that invalidated key portions of the agency's 2025 interim final rule governing H-2A wages.

The DOL's Office of Foreign Labor Certification (OFLC) said in its announcement that it was complying with an order issued by the U.S. District Court for the Eastern District of California in United Farm Workers v. DOL . The agency emphasized that current AEWRs remain in effect, that no employer is presently obligated to pay back wages, and that it will continue to challenge the court's conclusions through the litigation process.

Core elements of 2025 wage rule rejected. The dispute stems from DOL's October 2025 interim final rule (IFR), which overhauled the methodology used to establish AEWRs after the U.S. Department of Agriculture discontinued the Farm Labor Survey, the agency's longstanding data source for setting H-2A wage rates.

Under the IFR, DOL adopted the Occupational Employment and Wage Statistics survey as a replacement data source, created a two-tier skill system, implemented a housing adjustment that reduced wage rates to account for employer-provided housing, and adopted a "greater than 50 percent" rule for classifying jobs involving duties spanning multiple occupational categories.

Earlier in 2026, the district court held that the challenged portions of the IFR were arbitrary and capricious under the Administrative Procedure Act. The court found that the rule's two-tier wage structure improperly set wages for most H-2A workers at the 17th percentile rather than at market rates, that the housing adjustment conflicted with existing housing requirements, that DOL failed adequately to address shortcomings in its new wage data source, and that the occupational-classification rule could depress wages for U.S. workers. The court also concluded that DOL lacked good cause to bypass notice-and-comment rulemaking for most of those changes, although it recognized the agency's need to identify a replacement for the discontinued Farm Labor Survey.

Remand without vacatur. Rather than immediately vacating the IFR, the court remanded the matter to DOL and ordered the agency to "promptly" develop a new AEWR methodology and publish new wage rates. The court determined that immediate vacatur could create significant disruption because the prior methodology depended on the discontinued Farm Labor Survey and could leave the program without valid AEWRs. As a result, the existing AEWRs established under the IFR remain in effect pending issuance of replacement wage rates. OFLC said it will provide additional notice and transition guidance when a new methodology is adopted.

Potential backpay remains unresolved. A key issue left open by the court concerns possible backpay. The court required DOL to notify employers that they may ultimately be required to make wage adjustment payments for work performed during the period beginning with the agency's notice and ending when new AEWRs take effect. However, the court deferred any final determination on whether backpay will be awarded and, if so, in what amount.

Accordingly, OFLC's September 2 notice advises employers that H-2A workers and U.S. workers in corresponding employment could become entitled to wage adjustments if newly issued AEWRs exceed the rates currently being paid. The notice applies to employers with active certifications, pending applications, and new H-2A applications filed before publication of a replacement methodology.

At the same time, DOL asserted that compliance with the notice requirement does not constitute an admission that back-wage liability can lawfully be imposed. The agency stated that it intends to preserve its legal arguments against any future backpay obligation while simultaneously complying with the court's order.

Recordkeeping reminder. Given the possibility of future wage adjustments, OFLC reminded employers of their recordkeeping obligations. The agency advised employers to maintain identifying and contact information for H-2A workers and U.S. workers in corresponding employment, including Social Security numbers where available, Form I-94 numbers, addresses, email addresses, and telephone numbers, and to make reasonable efforts to keep that information current.

The agency said it is evaluating next steps both in the litigation and in developing a replacement AEWR methodology and pledged to provide additional guidance to agricultural employers and other stakeholders as the process moves forward.

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