H-2A employers must continue using the current adverse effect wage rates while the Department of Labor develops a new methodology following a federal court ruling. The department said September 2, 2026, that no employer is required to pay back wages at this time, but some employers may eventually face wage adjustment payments for work performed during a defined future backpay period.
The announcement from the Labor Department’s Office of Foreign Labor Certification responds to an August 26, 2026, order from the U.S. District Court for the Eastern District of California in United Farm Workers, et al. v. DOL, et al. The court found that the methodology adopted in the department’s 2025 interim final rule was unlawful and directed the agency to create a replacement methodology and publish new wage rates.
The order did not vacate the interim final rule or immediately replace the wage rates already issued under it. As a result, the existing H-2A rates remain operative until the department publishes new rates under a new methodology.
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What the Department of Labor announced
The September 2 notice is primarily a public warning required by the court. It tells state workforce agencies, agricultural employers and the public that certain workers could become eligible for additional wage payments if the new rates ultimately exceed the amounts paid during the relevant period.
The potentially affected period begins September 2, 2026, the date of the notice, and ends when the department issues new adverse effect wage rates under a replacement methodology. The department referred to that interval as the “backpay period.”
Any future payment obligation would depend on the new methodology and rates. Under the court’s order, employers may be required to make wage adjustment payments if qualifying H-2A workers or U.S. workers in corresponding employment were paid less than the new applicable rate for work performed during the backpay period.
The department emphasized that the notice does not itself create a current backpay bill. It also said that complying with the court’s notice requirement does not mean the department agrees that the court may lawfully impose future wage-adjustment obligations on employers.
Which H-2A employers are covered by the notice
The announcement applies broadly to employers connected to H-2A certifications that remain active or are filed during the transition. The covered groups include:
- Employers with previously approved temporary labor certifications whose certified employment end dates remain valid on September 2, 2026, including approved extensions.
- Employers with pending H-2A Applications for Temporary Employment Certification.
- Employers that file new H-2A applications after September 2 and before the OFLC administrator publishes a new AEWR methodology.
The notice concerns both foreign agricultural workers and U.S. workers performing corresponding employment. That is important because H-2A wage protections generally apply to covered U.S. workers doing the same or substantially similar agricultural work under the certified job opportunity.
Employers should not assume that a later wage adjustment, if ordered, would be limited to foreign workers. The department specifically reminded employers to preserve information for H-2A workers and U.S. workers in corresponding employment who could later qualify for backpay.
Current H-2A wage rates remain in effect
For now, employers must continue complying with the applicable H-2A wage requirements. The department’s current wage tables remain the operative reference point until new rates are published.
For non-range occupations, the adverse effect wage rate is one of several wage floors that may apply. Employers generally must offer and pay the highest applicable rate among the AEWR, an available prevailing wage, an agreed collective bargaining rate, and the applicable federal or state minimum wage. Other job-specific requirements may also affect the amount that must be paid.
The dispute centers on how the department calculates hourly AEWRs for non-range agricultural occupations. The October 2, 2025, interim final rule shifted the methodology toward wage information from the Bureau of Labor Statistics Occupational Employment and Wage Statistics survey. It also introduced skill-based wage categories and a standard adjustment related to employer-provided housing for H-2A workers.
The court’s ruling challenged that methodology. The court directed the department to produce a new approach, but the existing rates were left in place while the litigation and rulemaking process continue.
Why the AEWR methodology matters
The AEWR is designed to prevent the employment of temporary foreign workers from adversely affecting the wages and working conditions of U.S. workers. For employers, the rate affects recruitment, job orders, payroll, contracts and the overall cost of obtaining H-2A labor.
A change in methodology can produce different wage results by state, occupation, skill level or job classification. That means the eventual replacement system could affect employers differently depending on the duties described in their job orders and the rates ultimately published by OFLC.
The department said it is continuing to balance two statutory goals: helping employers obtain an adequate agricultural labor supply while protecting U.S. workers from adverse wage effects. It also said it intends to pursue approaches that provide greater continuity and predictability for farmers, workers and other H-2A stakeholders.
Until a new methodology is announced, the department has not instructed employers to retroactively recalculate wages under a different formula. Employers should continue using the applicable rates in effect for their job opportunities and comply with all other H-2A requirements.
Recordkeeping requirements take on added importance
The department reminded employers of their existing obligation to maintain accurate and adequate earnings records. In light of the court order, OFLC urged employers to make reasonable efforts to keep worker information current in case a later proceeding requires wage adjustments.
For potentially affected H-2A workers and U.S. workers in corresponding employment, employers should maintain, where available:
- The worker’s name.
- Permanent home address.
- Social Security number, if one has been issued.
- Form I-94 Arrival/Departure Record number, when available for an H-2A worker.
- Permanent email address.
- Telephone number.
- Accurate earnings and hours records for the work performed.
The notice does not change the underlying recordkeeping rule. Instead, it highlights why complete payroll and contact records may become important if new AEWRs are issued and a court later determines that adjustments are required.
Practical steps for H-2A employers
Employers using the H-2A program should treat the current period as a compliance and documentation transition rather than as an immediate backpay event.
- Continue paying the highest applicable wage. Use the current AEWR and compare it with any prevailing wage, collective bargaining rate and applicable minimum wage requirements.
- Review active certifications. Identify workers employed under certifications that remain valid and applications that are pending or may be filed during the transition.
- Preserve payroll records. Retain time, earnings, deductions and job-duty information for H-2A workers and corresponding U.S. workers.
- Update contact information. Make reasonable efforts to maintain current addresses, phone numbers, email addresses and other identifying information.
- Monitor OFLC announcements. The department said it will notify the public when a new methodology is established and will provide transition procedures at that time.
- Coordinate with advisers. Employers with complex payroll arrangements, piece-rate compensation or multiple job classifications should review their records with qualified immigration or employment counsel.
What happens next
The Labor Department said it is considering its next steps in the litigation and regarding the AEWR methodology. The agency also reserved its position on whether the court has authority to require future backpay adjustments.
The next major administrative event will be OFLC’s announcement of a new methodology and new AEWRs. That announcement is expected to explain when the replacement rates take effect and how employers should handle any transition. The department may also provide additional guidance if the court issues a further ruling on potential backpay.
Until then, the central message for H-2A employers is straightforward: current wage rates remain in force, no backpay is presently due under the September 2 notice, and careful recordkeeping is essential because future obligations remain possible for work performed during the identified transition period.
Frequently Asked Questions
Are H-2A employers required to pay back wages now?
No. The Department of Labor said no backpay obligation exists at this time. The notice warns that certain employers may later be required to make wage adjustment payments if new AEWRs exceed wages paid during the defined backpay period.
When does the potential H-2A backpay period begin?
The potentially affected period begins September 2, 2026, the date of the OFLC notice, and ends when the department issues new AEWRs under a replacement methodology.
Do current H-2A wage rates remain valid?
Yes. The department said current AEWRs remain in effect until new rates are published under a new methodology.
Which workers could be affected by a future adjustment?
Potentially qualifying H-2A workers and U.S. workers in corresponding employment who worked during the backpay period and were paid less than a new applicable AEWR.
What records should H-2A employers maintain?
Employers should maintain accurate earnings records and make reasonable efforts to keep worker names, addresses, Social Security numbers when issued, I-94 numbers when available, email addresses and phone numbers current.
Fact-Checked: Reported from the September 2, 2026 OFLC announcement and cross-checked against current Department of Labor AEWR and Foreign Labor Certification materials and the 2025 interim final rule.
Disclaimer: This article is informational and is not legal advice. Employers should review their specific obligations with qualified counsel.
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