Agricultural Employers Rack Up Seasonal Worker Wins Under Trump

Farm employers that rely on seasonal work visas have notched one regulatory success after another under the Trump administration amid a broader crackdown on employment of foreign workers.

Their biggest win so far came this month when the Department of Labor issued regulations overhauling the wage standard for most workers hired on H-2A temporary work visas.

The new rule delivers on a major industry priority by replacing an existing framework for “adverse effect” wage rates with one that will lead to substantially lower growth in pay to foreign farmworkers employed through the program.

“It’s a welcome relief,” said Michael Marsh, president and CEO of the National Council of Agricultural Employers. “Hopefully, it will give us an opportunity to get a wage rate in place that’s more competitive in the marketplace.”

Over the past nine months Trump administration policies have caused chaos for businesses employing immigrants of all kinds. It’s terminated protections and work authorization for hundreds of thousands covered by humanitarian relief programs. It’s set new fees for H-1B workers that would likely cut off access to the program from all but the biggest employers. And a mass deportation campaign had created uncertainty —and fueled absences from workplaces—across the labor market.

The exception has been the H-2A program, which allows hiring of foreign workers for seasonal farm labor and accounts for a growing share of the farm workforce in the US.

Even before the new wage rule, the Trump administration halted enforcement of worksite organizing protections for H-2A farmworkers and the White House had promised a reprieve for the ag sector from workplace immigration crackdowns.

The Department of Homeland Security in recent weeks also issued a rule allowing for more rapid filing of H-2A worker petitions. Those visas dodged a freeze on visas for commercial truck drivers. And they were one of the few categories allowed to bypass new in-person visa interview requirements adopted by the State Department that could create new delays for foreign workers.

New Wage Rule

Agricultural businesses that rely on the H-2A program have the ear of lawmakers and administration officials in a way that employers of high-skilled workers on H-1Bs don’t, said Sam Peak, labor and mobility policy manager at Economic Innovation Group.

“There’s just not the same incentive for advocacy,” he said. “Despite polling that shows high-skilled immigration is a popular priority, they trust farmers. And doing something that’s a win for farmers is seen as a win for America.”

The farm industry since Trump’s election in November have clamored for an overhaul of the adverse effect wage rate, which applies to most H-2A workers. Congress charged the DOL with ensuring that the pay and working conditions of US workers aren’t adversely effected by hiring of foreign labor although it largely left it up to the agency to determine how to meet that mandate.

Employers using the program must pay the highest of the AEWR wage, a prevailing wage, or collectively bargained wage.

Agricultural groups had been unsuccessful with legal efforts to overturn a Biden-era AEWR rule that stirred ire in particular over a requirement that workers performing multiple roles on a job site be paid for the highest-earning job.

But a Louisiana district court judge vacated the rule in August after the DOL agreed not to oppose an industry group’s motion to toss the standards in light of forthcoming wage regulations. That meant farms were subject to a 2010 wage rule that employers said was simpler to navigate.

The DOL followed up with an interim final rule Oct. 2 that replaced the underlying data used to set the wage rates. Instead of the US Department of Agriculture’s annual farm labor survey, it would use data generated by the Bureau of Labor Statistics. Because the BLS Occupational Employment and Wage Statistics program accounts for a wider set of occupations, it’s expected to lead to lower annual pay for H-2A workers.

Under the wage rates set with the USDA farm labor survey, American farmers “just can’t compete,” said NCAE’s Marsh.

The rule also adopts a two-tier approach based on skill levels. One level would apply to basic farm labor that could be performed by workers with minimal experience. The second skill level would encompass supervisor roles as well as specialized skills such as picking apples for color.

Labor Market Risks

The Trump administration plans to issue a “final” final rule after a 60-day public comment period that ends Dec. 2.

The DOL invoked a “good cause” exception to the Administrative Procedure Act to move ahead with the new rule before conducting the normal notice-and-comment process, citing possible labor shortages that threatened the country’s food supply.

Even using the wage methodology that predated the Biden-era regulations would lead to “unreasonably high price floors on labor,” the agency said in the interim final rule. And USDA had already discontinued the labor survey that the 2010 rule relied on to set wage rates. That combined with tougher immigration enforcement restricting unauthorized labor and the lack of an adequate US workforce threatened the stability of domestic food production, the DOL said.

“Despite rising wages, there is no indication that unemployed or marginally attached U.S. workers are entering the agricultural labor force in meaningful numbers,” the rule said. “Without swift action, agricultural employers will be unable to maintain operations, and the nation’s food supply will be at risk.”

Nathan Leys, staff attorney at FarmSTAND, said the rule is an “appalling” measure to suppress wages of H-2A workers.

“It also illustrates how the anti-immigrant and pro-Big Ag elements of the Trump Administration work hand in hand,” he said in an email. “The anti-immigrant terror creates an artificial agricultural labor shortage, which the administration seeks to use as a pretext not for directing more ag work to U.S. workers, but for making H-2A labor as cheap, plentiful, and exploitable as possible.”