Introduction

On November 21, 2025, the national agricultural labor union United Farm Workers (UFW) filed suit against the Department of Labor (“DOL”), challenging an interim final rule recently published in the Federal Register. The interim final rule amends the methodology used to calculate wages for workers employed through the DOL’s H-2A program. In the complaint, UFW is seeking to prevent enforcement of the rule nationwide. The outcome of this case could impact the wages of many agricultural workers, as the H-2A program boasted nearly 400,000 certified positions in 2024. This article will discuss the H-2A program, the interim final rule, and the suit brought by UFW.

Background

The H-2A program was created by the DOL to address domestic labor shortages by providing a means for employers to hire nonimmigrant foreign workers. Employers may hire nonimmigrant foreign workers through the H-2A program on a temporary or seasonal basis. To ensure that the wages paid to these foreign workers do not negatively impact the wage rates of domestic workers, the DOL created the Adverse Effect Wage Rate (AEWR). AEWRs are intended to protect the wages of domestic workers from suffering an “adverse effect” from wages paid to H-2A labor. To accomplish this, AEWRs set a minimum wage rate for H-2A workers.

The methodology used to calculate AEWRs has changed throughout the H-2A program’s history. Recently, AEWRs were set according to the 2023 AEWR Rule. Under the 2023 AEWR rule, employers would be required to pay the higher rate when two Standard Occupation Code (SOC) codes apply to a job description. For example, a worker who drives a truck loaded with farm equipment and engages in traditional farm labor would be classified as a normal farm worker. But, if that job additionally required the worker to operate semi-trucks over public roads, two SOC codes would be applicable. One code for a traditional farmworker and laborer and one for a tractor-trailer truck driver. This dual SOC code provision was challenged and subsequently vacated in Teche Vermilion Sugar Cane Growers Ass’n, Inc. v. Su,  6:23-cv-00831, as arbitrary and capricious. To learn more about the court’s decision, click here to read NALC article “2023 AEWR Rule Vacated”.  Following this, the DOL briefly applied the 2010 AEWR rule to calculate wages for H-2A workers. Then, on October 2, 2025, the DOL published an interim final rule that amended the AEWR methodology.

The Interim Final Rule

The interim rule is the current methodology used to calculate AEWRs under the H-2A program and it made several changes to the 2023 AEWR rule. First, the interim rule amended the AEWR methodology to rely solely upon the Bureau of Labor Statistics’ (BLS) Occupational Employment and Wage Statistics (OEWS) survey when calculating AEWRs. OEWS compiles employment data to create wage estimates, which are then separated into distinct SOC codes. Under the interim rule, the DOL is revising the AEWR methodology to use OEWS survey data. Using this survey data, five SOC codes covering the most common field and livestock positions will be created. AEWRs will be set based upon those five codes. Previously, AEWRs were set based on 6 SOC codes created using Farm Labor Survey data.

These AEWRs are divided into “two skill-based categories” to further account for wage differentials. “Skill Level I” is associated with entry-level jobs, while “Skill Level II” is attached to jobs with higher qualification requirements. The skill level will be determined based on the employer’s job offer, meaning an employer’s written description of the job can decide the skill level. Skill Level II positions typically pay higher than Skill Level I positions. These skill levels, alongside the SOC codes, are used to calculate AEWRs. Additionally, the interim rule implements a standard adjustment factor to the AEWR to account for employer-provided housing. Under the H-2A program, employers are obligated to provide housing at no-cost to H-2A employees. According to the DOL, this creates a disparity between domestic workers and H-2A workers. To combat this disparity, the interim rule is lowering AEWRs for employees who receive housing. Free housing is considered additional compensation and DOL believes lowering AEWRs will balance out that additional compensation. These changes are the focus of the UFW’s complaint challenging the interim rule.

The Suit

In its complaint, UFW seeks an injunction blocking the implementation or enforcement of the interim rule. In support of this request, UFW raises three claims of alleged violations of the Administrative Procedure Act (APA), a federal statute that establishes procedures for federal rulemaking and administrative law. Specifically, UFW asserts that the interim rule is not in accordance with the law, is arbitrary and capricious, and violates the APA’s notice-and-comment rulemaking requirement. To back these claims, UFW focused on several aspects of the interim rule that it believes will potentially harm the interests of U.S. farmworkers.

First, UFW asserts that the interim rule is “not in accordance with law” and thus in violation of the APA.  5 U.S.C. § 706(2)(A). This section of the APA requires agency actions to be set aside when they are found to be “otherwise not in accordance with law.” UFW claims that the interim rule is in violation of the Immigration and Nationality Act’s mandate that the H-2A program not adversely affect the wage and working conditions of U.S. workers. UFW asserts that the interim rule will lower AEWRs, which allows employers to pay H-2A workers less than what U.S. farmworkers were earning for the same positions. The UFW claims that this will create “downward pressure on the wages of those U.S. farmworkers.” UFW asserts this will adversely affect U.S. worker wages and is therefore not in accordance with the law.

Next, UFW claims that the interim rule is “arbitrary and capricious” in violation of the APA. 5 U.S.C. § 706(2)(A). UFW alleges that the DOL failed to “properly analyze the adverse economic effects of the new AEWR methodology on U.S. workers’ wages.” UFW claims that the interim rule “untethers DOL’s AEWR methodology from any measure of actual market wages paid to farmworkers.” According to the UFW, the interim rule actually “contains a number of features that ensure that it cannot track the actual market rates applicable to the agricultural jobs at issue.” UFW claims that the interim rule is “arbitrary and capricious” because it fails to consider an important aspect of the problem, which is the protection of U.S. farmworker wages. UFW additionally alleges that the housing deduction, which lowers the AEWR, will negatively impact U.S. worker wages.

Finally, UFW asserts that DOL violated the APA’s notice-and-comment rulemaking requirement. Under the APA, agencies are required to publish a notice of proposed rulemaking to the Federal Register. After notice, agencies are typically required to provide the public with an opportunity to comment on the proposed rulemaking.  However, these requirements will not apply when, “the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.”  5 U.S.C. § 553(b)(B). UFW asserts that the DOL published the interim rule without following the notice-and-comment requirements and failed to satisfy the requirements for the “good cause” exemption. In the interim rule, DOL asserts that a shortage in labor and a lack of viable AEWR methodology satisfied the “good cause” exemption.

For the reasons listed above, UFW has asked the court to issue an injunction that would universally bar the DOL from enforcing the interim rule. UFW asserts that barring enforcement universally is necessary because “there is no reasonable and practical way to limit relief to only the named Plaintiffs.” UFW argues that the interim rule will place downward pressure on wages in relevant markets, which will in turn threaten Plaintiff’s wages. UFW claims that an injunction preventing enforcement of the rule is necessary to “shield Plaintiffs from the IFR’s market impacts.”

Conclusion

Moving forward, the outcome of this case could have a major impact on agricultural labor across the nation. If the court grants UFW’s request for injunctive relief, enforcement of the interim rule would be blocked nationwide. This situation happened earlier in 2025, when a federal court vacated the 2023 AEWR rule. That decision led to the creation of the interim rule being challenged by UFW. If the interim rule is vacated, the DOL will once again be required to publish a new methodology for calculating AEWRs. When the 2023 AEWR was vacated, the 2010 version of the rule was used. However, the 2010 AEWR relied on the Farm Labor Survey, which is no longer active. DOL would likely need to find a way to implement OEWS data into an earlier version of the AEWR if it is forced to apply a new rule. This could leave employers in an undesirable position, as they would once again be required to adapt to changes to the H-2A program. Regardless of the outcome, agricultural employers across the nation should be aware of this case and what it could mean for their businesses.