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Source: ANDREW JACKSON LAW P.C., 2/22/21
DOL will publish new AEWRs in the Federal Register tomorrow. Attached is a copy of the Federal Register notice which includes a Table of 2021 AEWRs by state. These new hourly rates become effective on February 23, 2021. H-2A employers must pay the new AEWR to all H-2A workers and any U.S. worker engaged in corresponding employment for work performed on and after that date. The new AEWR applies regardless of the original wage rate stated in the job order and H-2A application. There is contract language in every job order to cover the AEWR change. Please update your payroll system to reflect the correct rate.
**GET YOUR HOUSING INSPECTIONS DONE SOONER**
All housing listed on the job order should be certified for occupancy no less than 60 days before the requested start date listed on the job order.
Andrew M. Jackson, Attorney
Andrew Jackson Law P.C.
Labor Certification Process for the Temporary Employment of Aliens in Agriculture in the
United States: 2021 Adverse Effect Wage Rates for Non-Range Occupations
AGENCY: Employment and Training Administration (ETA), Labor.
ACTION: Notice.
SUMMARY: The Employment and Training Administration (ETA) of the Department of Labor
(Department) is issuing this notice to announce the 2021 Adverse Effect Wage Rates (AEWR)
for the employment of temporary or seasonal nonimmigrant foreign workers (H-2A workers) to
perform agricultural labor or services other than the herding or production of livestock on the
range. AEWRs are the minimum wage rates the Department has determined must be offered and
paid by employers to H-2A workers and workers in corresponding employment for a particular
occupation and area so that the wages and working conditions of similarly employed workers in
the United States will not be adversely affected. In this notice, the Department announces
updates of the AEWRs, which are effective immediately pursuant to a recent federal court order.
Supplemental Order Regarding Preliminary Injunctive Relief, United Farm Workers, et al. v.
U.S. Dep’t of Labor, et al., No. 20-cv-1690 (E.D. Cal. Jan. 12, 2021), ECF No. 39.
DATES: These rates are applicable [INSERT DATE OF PUBLICATION IN THE FEDERAL
REGISTER].
FOR FURTHER INFORMATION CONTACT: Brian Pasternak, Administrator, Office of
Foreign Labor Certification, Employment and Training Administration, U.S. Department of
Labor, 200 Constitution Avenue, NW, Room N-5311, Washington, DC 20210, telephone: (202)
693-8200 (this is not a toll-free number). Individuals with hearing or speech impairments may
access the telephone numbers above via TTY/TDD by calling the toll-free Federal Information
Relay Service at 1 (877) 889-5627.
This document is scheduled to be published in the
Federal Register on 02/23/2021 and available online at
federalregister.gov/d/2021-03752, and on govinfo.gov
SUPPLEMENTARY INFORMATION: The U.S. Citizenship and Immigration Services of
the Department of Homeland Security will not approve an employer’s petition for the admission
of H-2A nonimmigrant temporary and seasonal agricultural workers in the United States unless
the petitioner has received an H-2A labor certification from the Department. The labor
certification provides that: (1) there are not sufficient U.S. workers who are able, willing, and
qualified and who will be available at the time and place needed to perform the labor or services
involved in the petition; and (2) the employment of the foreign worker(s) in such labor or
services will not adversely affect the wages and working conditions of workers in the United
States similarly employed. 8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184(c)(1), and 1188(a); 8 CFR
214.2(h)(5); 20 CFR 655.100.
Adverse Effect Wage Rates for 2021
The Department’s H-2A regulations at 20 CFR 655.122(l) provide that employers must pay
their H-2A workers and workers in corresponding employment at least the highest of: (i) the
AEWR; (ii) the prevailing hourly wage rate; (iii) the prevailing piece rate; (iv) the agreed-upon
collective bargaining wage rate; or (v) the federal or state minimum wage rate in effect at the
time the work is performed. Further, when the AEWR is adjusted during a work contract and is
higher than the highest of the previous AEWR, the prevailing rate, the agreed-upon collective
bargaining wage, the Federal minimum wage rate, or the state minimum wage rate, the employer
must pay that adjusted AEWR upon the effective date of the new rate, as provided in the
applicable Federal Register Notice. See 20 CFR 655.122(l) (requiring the applicable AEWR or
other wage rate to be paid based on the AEWR or rate in effect “at the time work is performed”).
On November 5, 2020, the Department published a final rule, Adverse Effect Wage Rate
Methodology for the Temporary Employment of H-2A Nonimmigrants in Non-Range
Occupations in the United States, 85 FR 70445 (2020 AEWR final rule), to establish a new
methodology for setting hourly AEWRs, effective December 21, 2020. On December 23, 2020,
the U.S. District Court for the Eastern District of California issued an order enjoining the
Department from implementing the 2020 AEWR final rule and ordering the Department to
operate under the 2010 rule, Temporary Agricultural Employment of H-2A Aliens in the United
States, 75 FR 6884 (Feb. 12, 2010). Order Granting Plaintiffs’ Motion for a Preliminary
Injunction, United Farm Workers, et al. v. U.S. Dep’t of Labor, et al., No. 20-cv-1690 (E.D.
Cal.), ECF No. 37. On January 12, 2021, the district court issued a supplemental order requiring
the Department to publish the AEWRs for 2021 in the Federal Register on or before February 25,
2021, using the methodology set forth in the 2010 rule, and to make those AEWRs effective
upon their publication. Supplemental Order Regarding Preliminary Injunctive Relief, United
Farm Workers, et al. v. U.S. Dep’t of Labor, et al., No. 20-cv-1690 (E.D. Cal.), ECF No. 39.
Pursuant to the district court’s supplemental order, the Department notified state workforce
agencies (SWAs), employers, and the general public that the AEWRs in effect on December 20,
2020, remained in effect during the interim period until the Department published this update of
the AEWRs for 2021 in the Federal Register. See, e.g., Announcements, OFLC Announces
Updates to Implementation of the H-2A Adverse Effect Wage Rate Methodology for Non-Range
Occupations Final Rule; Compliance with District Court Order (Jan. 15, 2021), available at
https://www.dol.gov/agencies/eta/foreign-labor/news. As reflected in the Department’s
announcement on the OFLC website at https://www.dol.gov/agencies/eta/foreign-labor/news, the
district court’s supplemental order also reserved decision on whether an award of backpay to
affected H-2A workers may be warranted based on the difference, if any, between the applicable
2020 AEWRs and the 2021 AEWRs announced in this notice.
Accordingly, the 2021 AEWRs for all agricultural employment (except for the herding or
production of livestock on the range, which is covered by 20 CFR 655.200-235) for which
temporary H-2A certification is being sought is equal to the annual weighted average hourly
wage rate for field and livestock workers (combined) in the state or region as published by the
U.S. Department of Agriculture (USDA) in the 2020 Farm Labor Report on February 11, 2021.
The 2021 AEWRs to be paid for agricultural work performed by H-2A and U.S. workers on and
after the effective date of this notice are set forth in the table below:
TABLE—2021 ADVERSE EFFECT WAGE RATES
State 2021 AEWRs
Alabama $11.81
Arizona $13.67
Arkansas $11.88
California $16.05
Colorado $14.82
Connecticut $14.99
Delaware $14.05
Florida $12.08
Georgia $11.81
Hawaii $15.56
Idaho $14.55
Illinois $15.31
Indiana $15.31
Iowa $15.37
Kansas $15.89
Kentucky $12.96
Louisiana $11.88
Maine $14.99
Maryland $14.05
Massachusetts $14.99
Michigan $14.72
Minnesota $14.72
Mississippi $11.88
Missouri $15.37
Montana $14.55
Nebraska $15.89
Nevada $14.82
New Hampshire $14.99
New Jersey $14.05
New Mexico $13.67
New York $14.99
North Carolina $13.15
North Dakota $15.89
Ohio $15.31
Oklahoma $13.03
Oregon $16.34
Pennsylvania $14.05
Rhode Island $14.99
South Carolina $11.81
South Dakota $15.89
Tennessee $12.96
Texas $13.03
Utah $14.82
Vermont $14.99
Virginia $13.15
Washington $16.34
West Virginia $12.96
Wisconsin $14.72
Wyoming $14.55
DATED: February 18, 2021
SIGNED:
_____________________________
Milton A. Stewart,
Acting Secretary of Labor.
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