DOL Announces Additional Guidance for H-2A Program in Washington State for Non-Range Occupations

April 15, 2025, The Department of Labor Announces Additional Guidance to the H-2A Program in Washington State for Non-Range Occupations; Compliance with District Court Order.

Background

On March 28, 2025, the U.S. District Court for the Western District of Washington issued a preliminary injunction order in Familias Unidas Por La Justicia v. DOL, et al., No. 24-cv-00637,, enjoining the Department of Labor (Department or DOL) as to its approval of H-2A job orders submitted by certain employers seeking temporary labor certification for work performed in the state of Washington that list only the hourly Adverse Effect Wage Rate (“AEWR”) as an offered wage when there is an applicable prevailing piece rate wage for the particular crop or agricultural activity (“AEWR-only job orders”).

Specifically, the Familias order requires DOL to:

• Immediately rescind and modify all AEWR-only job orders approved for beneficiaries of the Barton preliminary injunction located in Washington since November 25, 2024;
• Inform all relevant employers in Washington that to continue to employ H-2A workers, they must unequivocally offer and pay the conforming prevailing piece rate wage under the 2020-Survey prevailing wage rates in compliance with the Ninth Circuit’s conclusion on the application of 20 C.F.R. §§ 655.120(a) and 655.122(l) in Torres Hernandez v. Su, 2024 WL 2559562, at *1 (9th Cir. May 24, 2024);
• Inform all relevant employers in Washington that they must expeditiously disclose updated terms and conditions of work to their employees; and
• Take immediate action to ensure that all current and future proposed job orders for the 2025 season are reviewed for compliance consistent with this Order.

Additional Guidance

The Department has sought relief from the March 28, 2025 Familias order by requesting the Western District of Washington reconsider its decision and partially vacate the parts of the order that require retroactive application.

The Department’s Office of Foreign Labor Certification (“OFLC”) is also taking action to ensure that job orders filed by employers in connection with current and future Applications for Temporary Employment Certification covering places of employment located in Washington state comply with the Familias order. Specifically, where such job orders propose to only offer the hourly AEWR and/or fail to “unequivocally offer” (i.e., terms that are clear and leave no doubt) an applicable prevailing piece rate wage for a particular crop or agricultural activity covered by active prevailing wage rates for Washington state available on the OFLC Agricultural Online Wage Library, the OFLC Certifying Officer (“CO”) will issue a Notice of Deficiency under 20 CFR 655.141 or Notice of Required Modification to the job order under 20 CFR 655.121(h) and provide the employer with an opportunity to submit a modified Application for Temporary Employment Certification or job order prior to the issuance of a Notice of Acceptance or final determination.