This article was prepared with the assistance of ABIL, the Alliance of Business Immigration Lawyers, of which Loan Huynh is an active member.
The Department of Labor (DOL) published a notice stating that the Assistant Secretary for Employment and Training (ETA) ratified a final H-2A rule published February 28, 2023, Adverse Effect Wage Rate Methodology for the Temporary Employment of H-2A Nonimmigrants in the Non-Range Occupations in the United States. The ratification was signed on May 3, 2024.
The notice explains that the final rule has become the subject of litigation asserting that the final rule was improperly issued. Specifically, a question concerns whether the final rule was approved by the Attorney General in consultation with the Secretaries of Labor and Agriculture. The notice states that on April 29, 2024, the Secretary of Homeland Security, in consultation with the Secretaries of Labor and Agriculture, approved the final rule. Before its issuance in February 2023, the final rule was provided to the Departments of Homeland Security and Agriculture through an interagency review process. The notice says to “resolve any possible uncertainty,” the DOL, through its Assistant Secretary for Employment and Training, is ratifying the final rule “out of an abundance of caution.”
The ratification certifies, among other things, that “the employment of H-2A workers will not adversely affect the wages and working conditions of workers in the United States similarly employed, and that the changes adopted in the Final Rule best strike the balance between the statute’s competing goals of providing employers with an adequate supply of legal agricultural labor and protecting the wages of workers in the United States similarly employed.”
