Federal Administrative Updates
DOL Publishes Final Rule on AEWR Methodology: DOL issued a final rule on the methodology for the H-2A program’s Adverse Effect Wage Rate (AEWR). The rule maintains the existing AEWR wage methodology for the vast majority of H-2A positions, but it adds a new methodology to protect wages for certain occupations that do not fall within the usual field and livestock job categories. This rule replaces a 2020 Trump Administration rule that was enjoined and ultimately vacated after the UFW and UFW Foundation, represented by Farmworker Justice and WilmerHale, sued to stop the harms it would have caused to farmworker wages. Read our fact sheet.
EPA Proposes Rule on Stronger Pesticide Protection: The EPA announced a proposal to amend federal standards on the application of pesticides. In response to years of farmworker advocacy, EPA in 2015 created the Application Exclusion Zone (AEZ), which prohibits pesticide handlers from applying pesticides when other individuals are within a certain distance. In 2020, the Trump Administration sought to weaken the AEZ protections. FJ joined Earthjustice in filing a lawsuit on behalf of several farmworker advocacy organizations to block the 2020 rule and succeeded. EPA has now announced their intent to largely return to the 2015 AEZ standard that preceded our litigation. Read our statement.
DOL Makes OSHA a Certifying Agency for U and T Visas: On February 13, 2023, DOL Secretary Marty Walsh granted the Occupational Safety and Health Administration (OSHA) the authority to issue certifications in support of U and T visa applications. U and T visas are available to victims of certain crimes and trafficking, but they require certification from a law enforcement agency. OSHA can now protect certain immigrant workers who participate in or report workplace safety issues through the issuance of a visa certification. Read more.
In New Rule, DHS Reportedly Considering H-2 Visa “Grace Period” and Dual Intent: Media reports have provided more detail on the changes that DHS may make in a forthcoming proposed rule geared towards increasing the flexibility of H-2 visas. While unconfirmed by DHS, the media reported three significant potential changes that: (1) would extend the grace period for a worker’s departure and arrival; (2) would allow guestworkers to apply to pursue existing permanent immigration avenues (i.e. green cards) without abandoning their H-2 visa; and (3) would allow workers to begin working immediately once USCIS receives a properly filed petition.
DOL and HHS Announce Partnership to Combat Child Labor: Leaders of the US Departments of Labor and Health and Human Services (HHS) announced on Feb. 27 that they are taking new steps to address exploitative child labor practices, including forming an inter-agency taskforce on “Child Labor Exploitation” and launching a national strategic enforcement initiative from the Wage and Hour Division. As part of that effort, DOL will be “applying further scrutiny to companies who conduct business with employers and staffing agencies that use illegal child labor." Read more.