April 24, 2023

(Washington, D.C.)

The National Council of Agricultural Employers (NCAE) filed a Motion for Preliminary Injunction against the Department of Labor’s (DOL) new Adverse Effect Wage Rate (AEWR) regulation, Friday evening, April 21, 2023.  The lawsuit alleges that the Secretary’s action in developing the regulation was arbitrary and capricious and an abuse of the Secretary’s discretion.   

“This regulation continues the DOL’s abusive practice of mandating minimum wages farmers and ranchers must pay under the Temporary H-2A Agricultural Program completely disconnected from the market for agricultural labor anywhere on the planet,” noted Michael Marsh, President and CEO of NCAE.  “Not only does the rule continue to misuse the U.S. Department of Agriculture’s (USDA) Farm Labor Survey (FLS) to establish wage rates, but it also piles on farm and ranch families by requiring nonfarm wages drawn from the Bureau of Labor and Statistics (BLS) for simple, routine, on farm activities, jobs which have been performed on American farms and ranches for generations.  Some farmworker wages will more than double under this new rule forcing family operations out of business.  And, of course, these mandated minimum wages impact all farm wages, whether employers use the program or not.”

The DOL received comments on this rulemaking from family farms and ranches located across the country raising concerns regarding the madness of the Secretary’s approach.  Commenters pointed out that the DOL’s regulations and its continued misuse of survey instruments not designed to capture actual agricultural wage rates were forcing America’s food production to flee to overseas competitors.  As a result of DOL’s ignoring the pleas of U.S. legacy farming operations, today more than 60% of the fresh fruit and more than 35% of the fresh vegetables consumed in the U.S. are being produced by overseas competitors.  Farm and ranch families, the Small Business Administration, economists, and others had warned the Secretary that such irresponsible action was putting America’s food security at risk—a concern seemingly ignored by the Secretary.

“NCAE has repeatedly petitioned the Secretaries of Labor to make a determination of an adverse effect to the domestic workforce due to the employment of H-2A workers prior to mandating devastating AEWRs.  Sadly, for America, the DOL has turned its back on commonsense and the American people.  The economic evidence overwhelmingly supports our cause and the fact that DOL’s estimates of cost impact are short by hundreds of millions, if not ultimately, billions of dollars!  These are incredible errors,” said Marsh.  “Having been slammed face first into the dirt by the Executive Branch, NCAE and our farm and ranch family members had no other choice than to turn to the Judiciary hoping the Court will hear and recognize the importance of our pleas for relief.”

The legal challenge is being brought in Federal District Court in Tampa, Florida, on behalf of NCAE and several named NCAE member plaintiffs.

NCAE is the national trade association focusing on agricultural labor issues from the employer’s viewpoint.


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February 28, 2023

(Washington, D.C.)

The National Council of Agricultural Employers (NCAE) raised grave concern over the issuance of a new wage rule for use in the H-2A Temporary Agricultural Worker Program published this morning. The regulation, which began its rulemaking journey in July 2019 during the Trump Administration, found its way to publication in the Federal Register today.

The new regulation would not only continue the Department of Labor’s (DOL) historic misuse of the USDA’s Farm Labor Survey to manufacture wage rates in the H-2A Program disconnected from the market for agricultural labor in the United States but also injects additional new wage rates into the program similarly disconnected from agriculture to compensate some workers for routine on-farm chores. The net effect of this new wage rule will push more of America’s food production offshore to foreign competition making American families even more dependent on foreign countries for food. Today more than 60% of the fresh fruit and more than 35% of the fresh vegetables consumed in the United States are produced offshore.

“The Department of Labor’s new wage rule is a disaster for American consumers and the farm and ranch families who toil every day to deliver bounty harvested from their legacy operations,” said Michael Marsh, President and CEO of the National Council of Agricultural Employers. “The Department is required by statute to establish wage rates under the H-2A Program that will not adversely effect the wages and working conditions of domestic workers similarly employed. This rule seeks to do that by throwing U.S. farm and ranch families under the bus!”

The National Council of Agricultural Employers has repeatedly petitioned Secretaries of the Department of Labor to hold hearings on the economics of this regulatory scheme but those petitions to the American government have been ignored. The Department of Agriculture has indicated that, “The Farm Labor Survey has been conducted for more than 80 years, using basically the same survey methods. It was not designed to be used as a source of wage rates for a guest worker program. Rather, it provides an accurate count of the numbers of persons employed in agriculture and the average wage rate across all skill levels and occupations.”

“With this new rule, American consumers can be confident in one thing, they will be more likely to find tomatoes in their grocery store grown in Mexico, than those grown in Florida, California, or Michigan. Similarly, consumers can count on finding blueberries, apples, and strawberries produced in Canada, but few selections grown in Georgia, New York, or Washington,” said Marsh. “A country forced to rely on others for its sustenance has forfeited a key element of its national security. America expects and deserves better than this!”

NCAE is working with legal counsel, economists, and Members of Congress to determine options and next steps forward.

NCAE is the national trade association focusing on agricultural labor issues from the employer’s viewpoint.

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Worker In Field Harvesting Potatoes

H-2A Visa Program

Why does the H-2A Visa Program matter?

The H-2A temporary agricultural worker visa program allows agricultural employers facing a shortage of domestic workers to bring nonimmigrant foreign workers to the U.S. to perform seasonal or temporary work.

When using temporary visa program for workers, agricultural employers must prepare well in advance, and are under strict scrutiny from the US Department of Labor and other regulatory agencies. Employers are frequently audited, so skilled preparation and execution becomes crucial.

Latest News in the H-2A Program

August 27, 2019. OFLC Announces New H-2A Application Forms and Schedule for Electronic Filing in the Foreign Labor Application Gateway System.

Data and Statistics of the H-2A Visa Program


Increase in H-2A Visas Issued from 2015 to 2019


H-2A Positions Certified in FY19


Increase in Number of H-2A Applications Received by OFLC from FY18 to FY19

Active Regulatory Reform For the H-2A Program

NCAE applauds the Trump Administration’s announcement on July 15th of its Notice of Proposed Rulemaking (NPRM) to modernize and improve the H-2A temporary agricultural labor certification program.

According to the Department of Labor’s announcement, “These proposed changes would modernize the Department’s H-2A regulations in a way that is responsive to stakeholder concerns and enhances employer access to a legal source of agricultural labor, while maintaining the program’s protections for the U.S. workforce and enhancing enforcement against fraud and abuse.”

“We are very pleased the Administration has agreed to roll out this much needed modernization effort for the H-2A program. It is obvious, based upon the 489 pages included, the deep dive that was done by the agencies in their effort to evolve the program to one more responsive to the needs of stakeholders,” said Michael Marsh, President and CEO of NCAE.

According to the Department, the wide-ranging rulemaking will streamline the application process and strengthen protections for U.S. and foreign workers. The rule also looks to update methodologies used to determine Adverse Effect Wage Rates while addressing many other issues.

Marsh noted, “The breadth of this proposed rule is substantial. NCAE will be working with its committees, members and legal counsel to develop targeted, cogent comments to provide to the Department. This type of hefty rulemaking doesn’t come around often. Our sleeves are rolled up and we’re raring to go!”.

Latest News on the H-2A Visa Program

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While the NCAE focuses on advocating for Agricultural Employers at the national level, we also aim to serve as a reliable resource for our members. If you have a question or concern, send us a message.