The United Farm Workers (UFW) and 18 farm workers sued the U.S. Department of Labor on November 21 to invalidate the Department’s October 2 Interim Final Rule (IFR) revising the calculation methodology for the Adverse Effect Wage Rate (AEWR), the key wage standard for the H-2A temporary agricultural worker visa program (see DOL Issues Rule for New Farm Visa Wage Standard, FELS website, Sept. 30, 2025). Employers sponsoring H-2A employees are required to pay them, and U.S. workers working in corresponding employment, the highest of the AEWR, the applicable minimum wage (federal, state or local) or the prevailing wage if a prevailing wage survey has been submitted to the Department of Labor for the occupation and area of intended employment. H-2A employers are also required to cover inbound and outbound transportation costs, provide no-cost housing, cover visa and other costs and either furnish catered meals or provide transportation to grocery stores and provide cooking facilities.

The Interim Final Rule revises the calculation methodology used for the AEWR by substituting Occupational Employment and Wage Statistics data onjob classifications and average hourly wages information for wage information gleaned from the U.S. Department of Agriculture’s Farm Labor Survey (FLS). Ag employer advocates expressed concerns about the overly broad definitions used for occupational classifications in the FLS and the influence of elevated wages paid to H-2A workers having an inflationary effect on the AEWR. USDA discontinued the FLS in response to these long-standing concerns.

USDOL also added new AEWR wage classifications, allowing for a “skill 1” and “skill 2” wage levels intended to reflect the value of experience, and allows employers to recover higher costs of employing H-2A employees by adding a third wage level classification with an “Adverse Compensation Adjustment.” The ACA is keyed to housing cost in the state of intended employment, but is not a deduction or credit from the AEWR; rather it is intended to reflect H-2A program employer costs like filing fees, transportation, and other costs that apply to foreign visa workers. The ACA AEWR classification is not available for U.S. workers working in corresponding employment.

In its petition to the U.S. District Court for the Eastern District of California, UFW alleges the IFR is is “unlawful” and will “put downward pressure on the wages of U.S. workers” who are in similar jobs, often on the same contracts as those with visas.” UFW’s petition claims the IFR violates regulatory law by implementing changes without public notice-and-comment; however regulatory agencies commonly use IFRs in emergency situations where relying on normal, months- or years-long regulatory processes will create problems. The Department stated that stepped up immigration enforcement, resulting in greater numbers of deportations and “self-deportations” of farm employees will result in worker shortages and food shortages, requiring expedited action through the IFR. (See coverage in the Yakima Herald-Republic, the Boston Herald, and the Capitol Press.

Curiously, UFW waited nearly six weeks after the IFR’s publication to file its complaint with the court, and did so on the Friday before a major holiday, a tactic commonly deployed to “bury the lead” on a action intended to avoid widespread attention. Informal legal analysis offered by some experts noted that UFW’s arguments aren’t very strong, which may explain why UFW has not sought a temporary restraining order, preliminary or permanent injunction against the IFR, which parties opposing a regulatory action will often do if they feel they are likely to persuade a court they have a strong case.

This relatively weak legal response may indicate UFW intends to attack the IFR in some other way, perhaps in the upcoming session of the California Legislature or some regulatory action by the Department of Industrial Relations.