Trump 2.0 Sets Stage for H-2A Farmworker Wage Reforms

The Trump administration is making another run at reforming the way H-2A minimum wage rates for farmworkers are set in a manner that could provide some relief to farmers during a time of continued uncertainty about workers who are in the country illegally.

A big question is whether the administration will follow the strategy they tried to implement as President Donald Trump was leaving office in 2020 or come up with a new method of setting the adverse effect wage rates, or AEWR, that farmers must pay H-2A workers.

USDA took a step toward reform by announcing that it will stop compiling its Farm Labor Survey, which the Labor Department has long used as the basis for setting wage rates for each state.

Separately but significantly, a Louisiana federal judge tossed out a 2023 rule issued by the Biden administration forcing farms to pay even higher wages for employees who spent some of their time on certain tasks such as driving a truck.

Farm groups contend the wage levels in the USDA survey led to unsustainable increases in labor costs when growers employ H-2A workers, and the Labor Department isn’t required by law to base adverse effect wage rates on the survey.

However, the law does require the Labor Department to ensure H-2A workers a farmer wants to import “will not adversely affect the wages and working conditions of workers in the United States similarly employed.” The law leaves it to the department to decide how to do that.

“This is not the first time that USDA cancelled the FLS – so far, USDA has always been required to resume the FLS by the courts,” Philip Martin, an agricultural labor specialist and editor of Rural Migration News at the University of California, Davis.

“I do not know what will happen, but I suspect that there will be another suit and perhaps an order to USDA to resume the FLS.”

The National Council of Agricultural Employers has a petition pending with the Labor Department calling on it to scrap the FLS and simply certify that H-2A wages don’t adversely affect domestic workers. The petition also argues that the adverse effect wage rates have made it more difficult for U.S. farms to compete against foreign production.

“By ignoring the [Immigration and Nationality Act’s] requirement to determine that no adverse effect exists, and by continuing to misuse the USDA’s FLS to fallaciously expand wages, the [Labor] Department effectively places not just a thumb, but a full palm, tipping the scales to favor foreign competition,” the petition says. “America’s farm and ranch families simply cannot compete in a market which artificially favors foreign competition.”

It is not clear what rates farms will have to pay in 2026, said NCAE President and CEO Michael Marsh.

He’s hopeful the administration will “seriously consider reconnecting our wage rate to the marketplace for wages and help American farmers and ranchers become competitive again in the marketplace.”

In a Sept. 3 Federal Register notice announcing the latest elimination of the FLS, USDA said that the Labor Department’s Occupational Employment and Wage Statistics program provided alternative data. The notice also suggested the FLS was inadequate because it lacked data from labor contractors.

“The FLS only collects information directly from farmers and does not capture information from farm labor contractors. Given the shortage of domestic labor and the complex process to navigate visa programs for foreign workers, more and more farmers rely on farm labor contractors to supply their workforce,” the notice said.

The first Trump administration proposed in the days before the 2020 presidential election to base the adverse effect wage rates on OEWS data for supervisory personnel and on a national average measure of wages known as the Employment Cost Index for other workers. The Labor Department estimated the wage cuts would save employers $148 million in 2023 and $158 million in 2024. 

But the United Farm Workers sued the Trump administration, and a California federal judge ordered USDA to restore the FLS and struck down the Labor Department overhaul of the AEWR.

The Labor Department hasn’t said what it will propose this time and didn’t respond to a request for comment on how the AEWR will be calculated for 2026. According to the administration’s regulatory agenda, released last week, the department is targeting next February to issue a notice of proposed rulemaking paving the way for a process for determining wage rates.

UFW hasn’t said whether it will sue USDA over killing the FLS. In a statement to Agri-Pulse, UFW President Teresa Romero said, “We are very concerned that changes in wage methodology are designed to further undercut the jobs and wages of American farm workers, who have already suffered greatly as the H2A program has ballooned in size.

“We are closely following these developments and weighing how to best protect the interests of the domestic workers that President Trump and his administration claim to defend against the agricultural lobby’s constant effort to cut wages.”

This article was originally published by Agri-Pulse. Agri-Pulse is a trusted source in Washington, D.C., with the largest editorial team focused on food and farm policy coverage.