New H‑2A AEWR Rule: What Ag Employers Need to Do Now

Seso hosted a live webinar unpacking DOL’s interim final rule reshaping the H‑2A AEWR the morning it was posted on October 2. If you missed it, you can watch the recording here. 

The summary below distills the key changes, what they mean for ag employers, and practical filing tips for your next ETA‑790. Make sure you are subscribed to the Seso newsletter to be kept up to date on all important legal changes and upcoming webinars.

Key takeaways

• USDA Farm Labor Survey is gone. AEWRs now come from BLS OEWS data, centered on the “Big Five” farm SOCs (crop/nursery, livestock, ag equipment operator, grader/sorter, packer).
  
  

• Two wage tiers. Skill Level 1 (generally 0–2 months required experience) vs Skill Level 2 (generally ≥3 months or other qualifiers based on complexities of job duties). DOL assigns the skill level from your job order and duties.
  
  

• Built‑in housing cost relief. An Adverse Compensation Adjustment (ACA) is baked into the H‑2A wage only (domestic corresponding workers do not get the ACA rate). Amount varies by state (e.g., ~$1.13 AR to ~$3.18 HI as cited in the webinar).
  
  

• State minimum wage is still the floor. If the adjusted H‑2A AEWR is below your state minimum, you must pay at least the state minimum (ag exemptions may apply by state). No additional adverse compensation adjustment (i.e. “housing adjustment cost”) can take you below it.
  
  

• SOC coding has a new standard. The old “all‑or‑nothing” approach from the 2023 Rule is out. DOL now looks at job duties performed by the worker for the majority of workdays to pick the SOC—and that choice can still trigger higher non‑farm wages for roles like CDL/driver, supervisors, heavy mechanics, construction/fencing.
  
  

• Effective now for new filings. The interim final rule (IFR) took effect upon publication; a 60‑day comment period is open. Existing, already‑certified contracts do not change mid‑season, but contracts filed after 10/02 will be adjudicated under the new IFR.
  
  

• Mid‑year updates. OEWS‑based AEWRs (and ACA amounts) are slated to update annually around July 1; state minimum wages may update at any time of year, but Jan 1 and Oct. 1 are common dates— employers must track both.
  
  

• USCIS e‑filing is live (unnamed). New I‑129H2A online filing for unnamed petitions lets USCIS review in parallel with DOL to compress timelines once certification is issued.
  
  

• Language matters on your 790. Your minimum entry requirements (and listed duties) drive skill level and SOC code—which drive the wage. Include “we reserve the right to pay more (tenure/performance)” language if employer wants to upwardly depart. 

What changed 

1) Data source shift: FLS ➜ OEWS

USDA’s Farm Labor Survey has been discontinued, so DOLwill use average BLS OEWS data using from the Big Five farm labor SOC codes. This is a seismic shift for most H‑2A job orders; many employers will see materially lower floors than recent seasons.

2) Two skill levels tied to what you require, not who you hire

• Skill Level 1: typically 0–2 months experience required (entry‑level).

• Skill Level 2: typically 3+ months or additional qualifiers (e.g., CDL, specialized first‑pick knowledge, supervisory duties).
  DOL decides based on your ETA‑790 requirements and listed duties. You can have very experienced returning workers and still qualify for Level 1 if your minimum requirement is entry‑level and duties fit.

Practical tension: Lowering requirements/duties to target Level 1 may increase domestic applicants who need training. Decide what’s truly required Day 1 vs. what you can train.

3) Adverse Compensation Adjustment (ACA) — “housing cost” built into H‑2A wages

• Only H‑2A workers get the ACA‑adjusted AEWR.

• Domestic corresponding workers must be paid the non‑adjusted Skill 1/2 AEWR (even if you house them).

• Workers declining housing still get the H‑2A ACA rate—the line is visa status, not whether housing is used.

• ACA amounts vary by state (webinar examples: AR ≈ $1.13, HI ≈ $3.18). You’ll see one cash rate on the paystub (no separate “credit” line).

Georgia example from the webinar: A domestic worker might be advertised at $12.27 (Skill 1), while an H‑2A worker on the same contract could be $10.52 after ACA.

4) SOC code assignment now looks at majority of workdays

The 2023 “if you do it once, everyone pays higher” approach is gone. Now the SOC matches the job duties a worker does on the majority of days. That said, driving/CDL, supervision, heavy mechanic work, and construction/fencing remain risk zones that can push you into higher OEWS wages if they’re predominant for those workers.

Filing strategy: If higher‑wage duties are truly discrete and limited, keeping separate job orders (e.g., shuttle/bus driver vs. harvest) can protect your farm‑worker crew from being pulled up to a driver wage. If DOL aggregates at the contract level, combined filings can dilute fringe duties; if they cherry‑pick roles, separation protects you. Your filing agent will weigh which path fits your facts.

5) The floor is still the floor

Even if the ACA‑adjusted H‑2A AEWR is low in your state, you can never pay below the applicable state minimum wage. Do not “deduct” the ACA from a state minimum—that’s not permitted. Watch for ag exemptions that vary by state and do not update at uniform times.

Timing & transition

• Effective now for new filings. The IFR took effect upon publication (the webinar occurred the same day the IFR posted).

• 60‑day comment window. Employers were encouraged to submit supportive comments and flag issues that still need clarification.

• Existing contracts are unchanged. You cannot lower wages mid‑contract. Current certs stay under their issued terms.

• Annual updates (~July 1). Expect OEWS/ACA updates mid‑year; state minimums often change Jan 1 or Oct 1 and can leapfrog your AEWR mid‑season—adjust payroll if that happens.

• Systems context. During the webinar, FLAG was offline due to a federal shutdown; DOL may allow emergency filings when systems resume if start dates are jeopardized.

• USCIS online filing. The new I‑129H2A e‑form for unnamed petitions enables parallel processing and faster approvals once DOL certifies.

How to draft your next ETA‑790 to protect your wage

1. Define true entry requirements

   • If Level 1 is appropriate, set experience at 0–2 months and say “will train” where safe.

   • Avoid listing qualifiers (e.g., CDL, specialized “first‑pick” expertise) unless truly required.

     
     

2. List duties with care

   • Keep high‑wage duties (CDL driving, advanced mechanics, construction) out unless they’re genuinely majority‑of‑workdays.

   • If you must include them for some workers, consider siloed job orders.
     
     

3. Reserve the right to pay more

   • Include language such as:
     “Employer may pay above the listed rate based on tenure, skills, performance, or business needs; all such opportunities are available to U.S. and H‑2A workers alike.”
     
     

4. Plan for two posted wages

   • Your recruitment will show the domestic Skill 1/2 AEWR.

   • Your H‑2A workers will be paid the ACA‑adjusted H‑2A AEWR. Expect DOL to update 790/790A formats to accommodate both.
     
     

5. Map multi‑state work

   • If crews cross state lines, track hours by state (or pay the higher state rate for the day if granular tracking is impractical).

Watch‑list SOC scenarios (likely to trigger higher wages if predominant)

• Truck/bus drivers (CDL)

• First‑line supervisors

• Heavy mechanic work (e.g., engine teardown vs. light repair)

• Construction/fence erection on ranch operations

If these are most days for a worker, expect non‑farm OEWS wages (still ACA‑adjusted for H‑2A, but generally much higher than Big Five farm rates).

FAQs

Can I list Level 1 requirements even if my returning H‑2A crew is highly experienced?
Yes. DOL looks at minimum requirements to enter the job, not your workers’ resumes.

Do housed domestic workers get the ACA rate?
No. ACA applies only to H‑2A workers, regardless of whether domestic workers are housed.

What if a worker declines employer housing?
Still H‑2A ➜ ACA rate. The line is visa category, not use of housing.

Can I pay below state minimum after applying the ACA?
No. State minimum (or ag‑specific minimum) is a non‑negotiable floor.

Will my current, active contract’s wage change?
No. Existing certifications remain as issued; you cannot lower in‑season.

Can a single job order list both Level 1 and Level 2 rates?
In practice, no. Your contract sets one minimum entry requirement ➜ one skill level. You can pay more for tenure/performance—just disclose that.

When will rates change next?
Expect annual OEWS/ACA updates around July 1; state minimums often change Jan 1.

Where will official rates be posted?
On FLAG/OFLC once systems are live (the webinar noted temporary downtime).