Jessica Blodgett, SHRM-CP, has been named to the Emerging Professional Advisory Council (EPAC) for the Society for Human Resource Management (SHRM) for a two-year term…. 
On the heels of the new rule for the H-2A program impacting nonimmigrant agricultural workers that took effect late last year, the Department of Labor recently published a follow-up rule introducing the methodology that employers need to follow when calculating H-2A wage rates. The bad news is that it could lead you to need to pay significant higher rates that you have been paying. It will take effect in just a few weeks – on March 30 – so what are the four most important things agricultural employers need to know?
1. What’s New with The Wage Rule – and All the Acronyms?
As we explained in detail in our summary when the change in methodology was proposed, the Final Rule changes the way the Adverse Effect Wage Rate (AEWR) for temporary nonimmigrant agricultural workers in the H-2A visa program is calculated. As many agricultural employers know, employers employing H-2A workers or American workers in corresponding positions must compensate workers at the highest of:
- the AEWR;
- the prevailing hourly or piece rate;
- the agreed-upon collective bargaining wage; or
- the applicable Federal, State or local minimum wage.
In many geographic areas, the AEWR serves as the primary wage indicator.
Historically, the Department of Labor relied on the Farm Labor Survey (FLS) conducted by the United States Department of Agriculture to determine the AEWR. However, the Department was concerned the FLS data lumped all data for field and livestock workers (combined) to determine a single AEWR for all non-range H-2A jobs. The Department determined this did not account for more specialized or higher paid job opportunities like H-2A supervisors or tractor trailer drivers.
Instead of relying on the FLS data for these higher paid job opportunities, the Department’s new method will instead look to the statewide or national average hourly wages for the occupation classification reported by the Bureau of Labor Statistics Occupational Employment and Wage Statistics Survey Program (BLS OEWS).
2. What Happened to Field and Livestock Workers?
The Department will still rely on the FLS to establish an average annual hourly wage for field and livestock workers. This will include specific job codes according to these Standard Occupational Classifications (SOC) (don’t worry—more acronyms ahead):
- SOC 45-2041 – Graders and Sorters, Agricultural Products
- SOC 45-2091 – Agricultural Equipment Operators
- SOC 45-2092 – Farmworkers and Laborers, Crop, Nursery, and Greenhouse
- SOC 45-2093 – Farmworkers, Farm, Ranch, and Aquacultural Animals
- SOC 53-7064 – Packers and Packagers, Hand
- SOC 45-2099 – Agricultural Workers, All Other
3. What About Specialized Positions Not Included in the SOC Codes Above?
Instead of looking to agricultural-specific data, the AEWR will be set by the job-specific SOC code as reported by the OEWS survey. If a statewide annual average hourly wage for the SOC code is published, that will be the AEWR. If a statewide annual hourly wage is not reported, the AEWR will be the national average hourly wage reported by the survey.
These rates can be significantly higher than the H-2A AEWR rate an employee would have historically received for doing the same work. Perhaps most concerning for employers, the BLS OEWS rates do not take into account agricultural-specific factors – for example, rural geographic areas where many H-2A employers operate.
In accordance with the new Rule effective March 30, employers must look to the specific SOC code to determine the applicable AEWR for specialized positions like logging, construction, heavy trucking, and supervision of farmworkers.
For example:
- In California, the January 2023 AEWR is $18.65 based on the FLS data.
- The California May 2021 mean hourly wage for a “Construction Laborer” (SOC 47-2061) is $25.38, a $6.73 increase from the farmworker AEWR.
- The California May 2021 mean hourly wage for a “Heavy and Tractor-Trailer Truck Driver” (SOC 53-3032) is $25.06, a $6.41 increase from the farmworker AEWR.
4. What Happens if My H-2A Employees are Performing Work That Could Fall Under Multiple Job Codes?
The new Wage Rule requires employers to pay the highest wage applicable if the job opportunity can be classified within more than one occupation.
Recently, the Department issued FAQ guidance on the Wage Rule. In it, the agency clarified that if an H-2A job order required workers to care for livestock, and also operate semi-trucks with at least 26,001 pounds Gross Vehicle Weight on public roads, that job would include two job codes: both SOC 45-2093 (Farmworker) and SOC code 53-3032 (Heavy and Tractor-Trailer Drivers). Even if this employee was primarily working under the Farmworker SOC code, they would be entitled to the Heavy and Tractor-Trailer Driver pay rate.
Turning back to our California example:
- This means an employee whose job primary entitles them to the AEWR of $18.65 per hour would be instead bumped to the “Heavy and Tractor-Trailer Truck Driver” SOC Code (53-3032), earning $25.06/hour. This rate would apply whether the employee was driving a truck or not.
Conclusion
There are many outstanding questions regarding the impact of the new Wage Rule. Industry organizations have expressed concern about the new Wage Rule and are pursuing legal challenges in court.
We will monitor developments related to the Final Rule and provide updates as warranted, so make sure you are subscribed to Fisher Phillips’ Insights to get the most up-to-date information directly to your inbox. If you have further questions on this or on the H-2A process in general, contact your Fisher Phillips attorney or the authors of this Insight.
A Senate committee hearing to discuss a labor reform bill showed disagreement between Republican and Democratic senators over the value that labor unions bring. 
Remote work and hybrid schedules are the new normal for many office-based employees who proved during the COVID-19 pandemic that they didn’t need to be onsite to fulfill…
Fisher Phillips, one of the country’s preeminent labor and employment law firms representing employers, is pleased to announce that Sheila Willis has been named a Leadership Council on Legal Diversity (LCLD) Fellow for 2023. Designed for lawyers with eight to 15 years of experience, this landmark intensive year-long professional development program connects high-potential attorneys with leading general counsel, managing partners and their peers for mentoring and career guidance.
Sheila is among the group of talented and diverse, mid-career attorneys who have been selected by their organizations for being deeply engaged, indispensable to key clients and teams, invested in attorney mentoring and professional development, and on a trajectory toward leadership positions. As a Fellow, Sheila will have the opportunity to participate in training sessions and interact with key legal and business leaders of large U.S. corporations as well as managing partners from the country’s most prestigious law firms.
Over the years, the LCLD Fellows Program has built a reputation for helping to launch participants into top legal positions with a substantial number of Fellows alumni becoming leaders within their organizations. LCLD President Robert J. Grey Jr. noted, “Since its inception in 2011, the LCLD Fellows program has produced some of the most impactful leaders in our industry.” He added, “I am pleased to see so many talented individuals—452 of them—being recognized for their accomplishments.”
Fisher Phillips is also pleased to announce that Lyle Chan and Marianna Bertikian have been selected to participate in LCLD’s Pathfinder Program focused on helping high-performing, early-career attorneys develop critical career development strategies including leadership and the building of professional networks. Lyle and Marianna were selected for the program because they were identified as emerging leaders who have, or have the potential to, distinguish themselves here at Fisher Phillips.
The Pathfinder program provides participants with the opportunity to learn from top leaders in the legal profession as well as career development experts. Over the course of seven months, the program is designed to train high-performing attorneys who are early in their careers on foundational leadership and relationship-building skills.
In addition to the exclusive leadership and professional-development curriculum that is unique to the Pathfinder program, this year’s 462 LCLD Pathfinders will have several opportunities—from class meetings to group peer circles—to meet and interact with their peers, both in person and in a virtual format. And, in addition to full class programming, Lyle and Marianna will be placed in small groups led by a Program Facilitator who serves as a mentor to help them connect what they learn in the program to their daily professional lives at Fisher Phillips.
The LCLD President explained that “much thought and research is behind the design of the Pathfinder program, which will serve to advance high-potential diverse attorneys to the next level of their careers.”
About The Leadership Council on Legal Diversity (https://www.lcldnet.org/)
The Leadership Council on Legal Diversity is an organization of more than 400 corporate chief legal officers and law firm managing partners—the leadership of the profession—who have pledged themselves, through our Leaders at the Front initiative and other means, to creating a truly diverse U.S. legal profession. Our action programs are designed to attract, inspire, and nurture the talent in society and within our organizations, thereby helping a new and more diverse generation of attorneys ascend to positions of leadership. By producing tangible results in our institutions, we work to promote inclusiveness in our organizations, our circles of influence, and our society, with the ultimate goal of building a more equitable and diverse legal profession. https://www.lcldnet.org/
First-generation students at the University of Illinois at Chicago’s College of Engineering are learning from dedicated tour guides how to prepare for, and navigate, employer internship fairs and job fairs. 
Employers just received some good news from the federal government that should help reduce the backlog for some visa renewals. Certain foreign workers looking to renew their visas can now do so within the U.S. instead of having to travel abroad and face significant visa processing times. Here’s what you need to know about the State Department’s new pilot program for non-immigrant H and L visa renewals, which is expected to launch later this year.
Pandemic Caused Significant Delays
Currently, most people who want to travel to the U.S. for work purposes must obtain a visa stamp at a U.S. embassy or consulate outside the U.S. prior to entry. This includes foreign nationals who already work in the U.S. but want to travel home for personal or business-related purposes. Historically, workers had the option to obtain visas while in the U.S. However, the government shutdown the domestic/stateside visa stamping program after the 9/11 terrorist attacks, and people were required to obtain visa stamps abroad.
While there have always been some issues with the process, the past few years have resulted in significant backlogs in visa renewals for many foreign countries due to the ongoing COVID-19 pandemic. Many U.S. embassies and consulates around the world were forced to suspend routine visa services and limit operations due to pandemic-related health and safety concerns. This has resulted in a significant backlog of visa applications and renewal requests that are not being processed in a timely manner.
Furthermore, the pandemic has also created logistical challenges, such as reduced transportation options and limited staffing, which have further contributed to the visa renewal backlog. For some countries, visa stamping appointments are not available until 2024.
New Pilot Program Announced
In an effort to combat these issues, the U.S. Department of State has unveiled a new pilot program that will allow some foreign workers to obtain visas without having to leave the United States. Julie Stufft, deputy assistant secretary for visa services in the Bureau of Consular Affairs, told Bloomberg Law that the pilot program is slotted to begin later this year and will restore a part of the previously discontinued domestic visa revalidation program that was eliminated in 2004. This new pilot program will apply specifically to non-immigrant H and L visa renewals.
This is welcome news for employers, as well as foreign workers and their dependents who are looking to renew H or L visas. Workers would otherwise encounter long wait times for visa appointments with the potential risk of being stuck abroad and disrupting their employment while they wait. Previously, U.S. employers have advised their foreign national employees to avoid international travel so they don’t get stuck abroad indefinitely while they secure a visa appointment.
Now, foreign workers and their dependents looking to renew their H or L visa will be able to do so without leaving the United States. You should be aware, however, that the pilot is likely to be narrow in scope and time-limited while the Department of State tests its ability to re-implement revalidation.
For those looking to renew visas in other categories, unfortunately, it may take months or longer for the State Department to roll out a full stateside revalidation program after the pilot is completed.
Conclusion
If you have any questions on whether this domestic visa revalidation program may apply to your workforce, please feel free to reach out to your Fisher Phillips attorney, the authors of this Insight, or any member of our Immigration Practice Group. We will continue to monitor the latest developments related to this area and provide updates as warranted, so you should ensure you are subscribed to Fisher Phillips’ Insight System to gather the most up-to-date information directly to your inbox.
In this How to Do Business in the Americas podcast series installment, Shareholder Juan Carlos Varela and Rodrigo Tajonar, Chief People Officer of the Boston Globe Media, discuss how organizations are dealing with the aftermath of the pandemic in the workplace.
https://www.littler.com/publication-press/publication/return-work-challenges-and-practical-recommendations