District Court Vacates 2020 Final Rule on Adverse Effect Wage Rate Methodology for Non-Range H-2As

April 4, 2022

The district court issued an order granting plaintiffs’ motion for summary judgment. The court vacated the 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, 11/5/20) and remanded the rule to DOL for further rulemaking consistent with the order. (United Farm Workers, et al. v. DOL, et. al., 4/4/22)

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January 15, 2021

DOL OFLC provided additional updates on the implementation of the H-2A Adverse Effect Wage Rate Methodology for Non-Range Occupations Final Rule. On January 12, 2021, the U.S. District Court for the Eastern District of California issued a supplemental order in United Farm Workers, et al. v. DOL, et. al., requiring DOL to publish the adverse effect wage rates (AEWR) 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. Additionally, the court ordered DOL to notify all state workforce agencies (SWAs), employers, and the general public that the AEWRs in effect on December 20, 2020, will remain in effect during the interim period until DOL publishes 2021 AEWRs in the Federal Register. The court reserved decision on whether an award of backpay is warranted based on the difference, if any, between the 2020 AEWRs and the final 2021 AEWRs.

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December 23, 2020

In response to a 12/23/20 district court order in United Farm Workers, et al. v. DOL, et. al., that enjoined DOL from implementing the DOL Final Rule on Adverse Effect Wage Rate (AEWR) methodology for non-range H-2As (85 FR 70445), OFLC announced that H-2A job orders filed on or after 12/21/20 must use the AEWRs in effect on 12/20/20.

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November 30, 2020

The plaintiffs, United Farm Workers (UFW) and UFW Foundation, filed a complaint seeking the following relief:

1. Preliminary and permanent injunctive relief preventing Defendants from implementing or otherwise taking any action to enforce the challenged regulation in the DOL Final Rule published on November 5, 2020, that is scheduled to go into effect on December 21, 2020;
2. An order vacating and setting aside the challenged regulation;
3. A declaration that the challenged regulation is unlawful under the Administrative Procedure Act;
4. An order awarding Plaintiffs their costs and attorney’s fees; and
5. Any and all other such relief as the Court may deem appropriate.

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Cite as AILA Doc. No. 20122400.

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