Legal Affairs Counsel’s Corner: DOL Agrees to Vacate 2023 AEWR Rule

Seso's Barron Dickinson breaks down key policy updates for August 2025.

Well It’s About Dang Time! In Teche Vermilion Sugar Cane Growers Assoc. v. Chavez-DeRemer, No. 6:23-cv-831 (W.D.La.), the U.S. District Court for the Western District of Louisiana in  has vacated the Department of Labor’s 2023 Adverse Effect Wage Rate Methodology for the Temporary Employment of H-2A Nonimmigrants in Non-Range Occupations (88 Fed. Reg. 12760, Feb. 28, 2023). In its final judgment, the court found the rule to be “arbitrary and capricious” under the Administrative Procedure Act, effectively rescinding it nationwide. As a result, employers may now revert to the prior framework that distinguishes simply between agricultural and non-agricultural work, with the Farm Labor Survey’s (FLS) AEWR controlling for agricultural tasks.

The employer, rather than the SOC code assigned to the job order, will again dictate what wage is appropriate for job duties beyond traditional field or equipment operator work. Employers are encouraged to immediately incorporate language allowing them the discretion to pay higher wages and should continue to be mindful of corresponding domestic worker obligations. The return to the previous methodology removes the task-by-task wage layering system imposed by the 2023 rule and empowers the employer to dictate wages for tasks involving more skill or elevated responsibilities based on the local labor market. Employers are encouraged to amend any pending job order to the FLS-AEWR, and there is no longer a need to silo-off higher wage SOC-code job duties for fear of an astronomically high OEWS wage being applied to the entire job order. 

Importantly, this vacatur does not retroactively lower wage obligations. Any job order previously certified at a higher wage under the 2023 rule remains binding on the employer for its duration. Moving forward, however, new applications will be subject to the prior AEWR rule, giving employers greater predictability while the Department of Labor considers future rulemaking. Employers are always encouraged to seek local counsel to review current job orders, confirm compliance under the reverted framework, and prepare for potential new wage methodology proposals from DOL. 

While the end of the 2023 AEWR methodology is an important first step and improvement, we reiterate the need for the Department to continue with needed reforms to provide a sustainable replacement to the bigger issue facing H-2A employers - the continued unsustainable rise of the FLS-AEWR.

Key Takeaway

The 2023 AEWR Rule has been vacated by a federal court as “arbitrary and capricious,” restoring the prior framework where the FLS AEWR governs agricultural tasks. Employers can now return to listing job duties outside the “Big Six” in the same job order without fear of being assigned a higher wage that was sometimes double or even triple the state AEWR. This change does not reduce wages already certified under higher rates—those obligations remain binding—but new applications will be processed under the old rule, providing more predictability until DOL proposes a replacement methodology.

U.S. Department of State Pauses Issuance of CDL Work Visas

On August 21, 2025, Secretary of State Marco Rubio announced an immediate suspension of all worker visas issued to commercial truck drivers, citing growing concerns about road safety and economic implications for American truckers. To date, State Department officials have confirmed that visa issuance will be paused for truck drivers in the EB-3, E-2, and H-2B visa categories. H-2A has not been included in the visa halt yet, and it remains to be seen what, if any, additional guidance will be provided for H-2A employers.

The decision follows a fatal incident in Florida involving a truck driver who reportedly lacked English proficiency and had obtained a commercial driver's license under questionable circumstances. Transportation Secretary Sean Duffy and the Federal Motor Carrier Safety Administration have launched investigations into licensure practices—especially in cases involving non-domiciled applicants. Officials emphasize the importance of enforcing English-language testing and ensuring that all licensed drivers meet stringent safety standards.

The visa suspension comes amid an ongoing commercial truck driver shortage—estimated at around 60,000 positions—which could now face further strain. The American Trucking Association released a statement indicating its support for increased scrutiny of foreign CDLs to uphold safety and integrity in the industry in response to Rubio’s announcement. At the same time, this visa policy is part of a broader shift toward tighter immigration enforcement, with continuous vetting of all visa holders underway.

Third Circuit Strikes Down DOL’s Use of ALJs in H-2A Enforcement

The Third Circuit Court of Appeals recently issued a major decision in Sun Valley Orchards v. U.S. Department of Labor, ruling that the Department of Labor (DOL) cannot rely on its own administrative law judges (ALJs) to impose civil penalties in H-2A enforcement actions. Sun Valley Orchards, a New Jersey farm, had been assessed more than $550,000 in penalties and back wages following a DOL investigation. Rather than challenging the merits of the violations, the farm argued that the proceedings themselves violated the Constitution by denying the right to a jury trial. 

The court agreed, holding that civil penalty enforcement in H-2A cases falls within the scope of the Seventh Amendment, which guarantees the right to a jury trial in civil disputes. Historically, employers have been obligated to appeal assessments of fines and back wages by resulting from Wage & Hour audits to DOL’s Office of Administrative Law Judges which employers have long complained that the deck was stacked against them due to the fact that the ALJs and DOL’s prosecuting attorneys’ being employed by the same government agency. The decision closely follows the Supreme Court’s ruling in SEC v. Jarkesy, which likewise struck down agency reliance on in-house tribunals to levy penalties in SEC enforcement cases. 

For H-2A employers in New Jersey, Pennsylvania, and Delaware, this means future DOL enforcement actions seeking penalties must be brought in federal court, not decided internally by the agency. While the ruling applies directly only within the Third Circuit, it sets a persuasive precedent that could influence challenges nationwide. Employers should continue prioritizing compliance with H-2A rules but may now have a stronger constitutional defense against agency-driven penalty proceedings.