Ag News

Ag groups alarmed over AEWR methodology

by Compiled by Georgia Farm Bureau

Posted on Mar 08, 2023 at 0:00 AM

Compiled by Georgia Farm Bureau

On Feb. 28, the U.S. Department of Labor (DOL) published its final rule to change how adverse effective wage rates (AEWR) are set for workers recruited through the H-2A migrant labor program. The new methodology immediately prompted concerns among agricultural employers who will be obliged to pay H-2A workers significantly higher wages than they were able to budget for in the 2023 crop year. The rule takes effect March 30. 

In a separate action, the U.S. Citizenship & Immigration Services (USCIS) has proposed new fees in H-2A and other migrant worker programs.

The AEWR rule was a key topic of conversation during the Georgia Farm Bureau Presidents’ Trip to D.C. Feb. 28 – March 1. Many of Georgia’s fruit, vegetable and dairy producers utilize H-2A workers to produce their commodities. For 2021, Georgia was second nationally, behind Florida, in number of H-2A workers employed.

According to a DOL press release, the final rule establishes the following methodology for determining Adverse Effect Wage Rates:

The department will continue to use the average annual hourly wage as reported by the Farm Labor Survey (FLS) for field and livestock workers, combined, occupations – which represent most agricultural jobs – for the state or region.

For all other agricultural jobs, not represented adequately or reported by current FLS data, the department will use the statewide or national average annual hourly wages for the occupational classification reported by Occupational Employment and Wage Statistics (OEWS) program.

For job opportunities that cover more than one classification, the department will base adverse effect rates on the highest wage for the applicable occupations.

In Georgia, farms that use H-2A workers already faced a 14% increase in wages, which now start at almost $14 an hour. The structure of the AEWR job classification could mean, for example, that any worker who drives a tractor during the course of his/her duties must be paid at the rate for employees classified as tractor drivers, established at more than $20 per hour.

The USCIS fees set forth in its proposed rule would skyrocket by 1,470% over current fees, according to analysis from the Georgia Fruit & Vegetable Growers Association (GFVGA).

Presently, the U.S. Citizenship and Immigration Services (USCIS) fee for an I-129 petition for H-2A Temporary Agricultural Workers (H-2As) is $460. This fee applies to petitions for both named and unnamed beneficiaries.

From the GFVGA:

• The proposed fees contained in this regulation would dramatically increase the cost of each petition and add a new $600 “Asylum Program Fee” to each petition as well. The proposed regulation would disadvantage employers who have developed often longstanding good relationships with their workers who annually will choose to leave their families in their home countries and legally enter the U.S. to work at the same operation year after year, by limiting each petition for named beneficiaries to 25 individuals. These costs are further compounded when workers are transferred to a new contract or due to unforeseen circumstances such as floods, hurricanes, drought, torrential rains, untimely freezes, or excessive heat, an employer seeks to extend a worker’s stay.

• For example, an employer who has had the same 100 farmworkers working on his operation for the last 10 years files a petition to have the workers return in the coming season. The source country for these workers is not presently on the approved country list. Presently the I-129 fee for this petition is $460. The new fees for these same named 100 workers would increase from the present cost of $460 to $6,760 (new $1,090 I-129 fee plus $600 asylum fee = $1,690 multiplied by 4 petitions). This is a 1,470% increase in fees ($6,760/$460 = 14.6956).

The GFVGA noted these are added costs of doing business negatively impacting the viability of the enterprise, and the agricultural employer has no means of recouping any added expense.

The USCIS is accepting public comments on this proposed rule until March 13. Click here to read the proposed rule and/or submit a comment.

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