Legal Affairs Counsel’s Corner: UFW Denies Request to Block DOL's 2025 AEWR IFR

Major Win for H-2A Employers: UFW Denied Request to Block DOL’s 2025 AEWR IFR

On May 14, 2026, a federal judge in the U.S. District Court for the Eastern District of California denied the United Farm Workers’ (UFW) motion for a preliminary injunction seeking to block the Department of Labor’s October 2, 2025 Adverse Effect Wage Rate (AEWR) Interim Final Rule (IFR). As a result, the IFR remains in effect while the litigation proceeds. A copy of the court’s decision is available here.

In denying the request, the court concluded that UFW failed to establish the immediate and irreparable harm necessary to justify emergency injunctive relief. The court noted that most of the evidence presented involved anticipated future wage impacts rather than actual or imminent wage reductions, and that several UFW had not shown their wages had actually decreased under the IFR. The court also found that UFW’ delay in seeking preliminary relief weighed against a finding of urgency.

Because the court found UFW failed to establish irreparable harm, it did not reach the remaining legal arguments regarding the validity of the IFR at this stage. The lawsuit will continue on the merits, but the October 2025 IFR remains fully in effect for now. 

Importantly, the regulation currently at issue is only an Interim Final Rule. The Department of Labor is expected to publish a Final Rule establishing the AEWR methodology that will govern the H-2A program going forward, effective upon publication. Once issued, the Final Rule would likely render much of the current litigation moot, though it would also likely create another opportunity for UFW to challenge the new Final Rule and seek injunctive relief against its implementation.

Seso will continue monitoring this matter and provide updates as they become available.

OFLC Publishes FAQ Regarding English Language Proficiency Requirements in Job Orders Seeking to Employ Operators of Commercial Motor Vehicles

On May 14, 2026, the U.S. Department of Labor’s Office of Foreign Labor Certification (OFLC) issued a new announcement and guidance in the form of an FAQ (attached) regarding English language proficiency (ELP) requirements for job opportunities involving the operation of commercial motor vehicles (CMVs). DOL’s announcement regarding the issuance of OFLC’s new FAQ can be found here: DOL Press Release - May 14, 2026. A copy of the FAQ is available for review here: OFLC - ELP FAQ.

This new guidance follows President Trump’s April 28, 2025 Executive Order, “Enforcing Commonsense Rules of the Road for America’s Truck Drivers,” and clarifies that employers filing H-2A, H-2B, CW-1, or PERM applications for positions requiring workers to operate CMVs must now expressly include an ELP requirement in the job order and application materials. Importantly, the guidance is limited to positions that actually require workers to operate a CMV as defined under federal FMCSA regulations. 

A CMV is broadly defined and may include certain larger vehicles used in agriculture even when a CDL is not required. OFLC specifically emphasizes that exemptions from CDL requirements do not necessarily exempt drivers from the driver qualification rules found in 49 C.F.R. Part 391, including the ELP requirement reflected in 49 C.F.R. § 391.11(b)(2), which provides in relevant part that “a person is qualified to drive a motor vehicle if he/she…[c]an read and speak the English language sufficiently to converse with the general public, to understand highway traffic signs and signals in the English language, to respond to official inquiries, and to make entries on reports and records…” As a result, agricultural employers should carefully evaluate whether workers operating trucks, buses, or other qualifying vehicles in interstate commerce may fall within the scope of the new guidance.

The FAQ specifically advises that all job orders and/or applications seeking temporary or permanent labor certification for jobs requiring the operation of a CMV must include an ELP standard consistent with 49 C.F.R. § 391.11(b)(2). To comply with this requirement, OFLC confirmed that an employer’s job order and/or application would be in compliance if it stated the following: 

“The worker must be able to read and speak the English language sufficiently to converse with the general public, understand highway traffic signs and signals in English, respond to official inquiries, and make entries on reports and records.”

OFLC also noted that translation apps, interpreters, cue cards, and similar tools are no longer permitted during FMCSA English language proficiency assessments. Beginning on June 15, 2026, OFLC may issue Notices of Deficiency (NODs) or deny applications that require workers to operate a CMV but fail to include compliant ELP language. 

Employers should review current and future job orders to determine whether any duties involve operation of vehicles that may qualify as CMVs under federal regulations, including certain agricultural transportation activities. Importantly, while OFLC has historically refrained from mandating employers to include an explicit reference to the ELP requirement for job orders seeking to employ foreign workers under a job opportunity with an ELP qualification for job orders requiring the operation of a CMV and/or possession of a CDL (i.e. SOC Code 53-3032, Heavy and Tractor-Trailer Truck Drivers), this FAQ is best characterized as a reminder of H-2A employers’ obligation to comply with all applicable federal, state, and local laws pursuant to 20 C.F.R. § 655.135(e). 

Seso will continue to monitor this issue closely and provide any updates, as appropriate, moving forward. If you have any questions or concerns, please reach out to your designated Seso representative for support.