Ask the experts: Q&A with Justin Bartlett

In October, The Department of Homeland Security (DHS) introduced a new rule to streamline the H-2A filing process, and the Department of Labor published an interim final rule (IFR) revising the wage methodology for determining the Adverse Effect Wage Rate (AEWR).

How will these changes impact growers that use H-2A?

Both are going to help. Once we start filing new job orders and the government opens up, and we see how all this turns out and if everything works the way it should, we’ll have more feedback. But on paper, they’re both going to be helpful for the grower.

How does the DHS change streamline the H-2A process?

It’s going to help tremendously because we used to have to wait until a job order was certified to file the I-129 forms with U.S. Citizenship and Immigration Services (USCIS). Then they would have to approve that, and then at that point we could then make appointments at the consulate. There was usually a 10-day to 14-day waiting period for them to approve it. Now we’re able to file those I-129s as soon as they accept the job order. It’s going to save us a week to a couple weeks, allowing us to get better appointment times for our workers. Time is of the essence.

How do the changes to the Adverse Effect Wage Rate (AEWR) work?

When USDA got rid of the Farm Labor Survey a month ago, we were all wondering what the basis for determining what the AEWR was going to be. Now, they’re using the Occupational Employment Wage Statistics survey and a state’s minimum wage.

OEWS wages have skill level one and skill level two for workers. But I think a majority of H-2A jobs should fall under skill level one. And OEWS wages for skill level one are dramatically less than AEWR. The OEWS wage updates every July 1. A lot of those wages decreased by 15 to 30 percent, every state, for skill level one. For skill level two, some of them are in line with what the AEWR was for that state.

How big of a difference can the wage be?

For example, in Michigan, it was $18.15. But now it’s going to go back down to the state minimum wage, because the state minimum in Michigan is higher than the OEWS wage. The state minimum now is $13.73 for the next calendar year. So going from $18.15 to $13.73 is a dramatic savings for the grower. DOL estimates growers will save $24 billion over the next 10 years.

How will this impact growers and workers?

The wages are reset to be more aligned to where they should have been. They’ve increased at a rate that’s not sustainable. It’s going to help the grower tremendously.

On the other hand, you have an H-2A worker that’s been coming in for years, potentially, and is used to a certain wage. Now their wages are going to be cut back, but it’s still a wage that’s dramatically better than what they can get in Mexico. We’ve talked to a lot of our workers already about the change, and they’re all still thankful to come in. But it’s still a touchy situation. You go from one extreme where it’s favoring the worker and hurting the grower. When the rate went up, it was out of everybody’s control. Now it’s gone down — that’s the facts — and it’s out of our control again. H-2A workers still have the ability to not come back for these wages if they don’t want to. Although the minimum has changed, employers are always free to pay more to recruit top talent. We haven’t had any workers say that they’re not willing to come back for that wage, but we haven’t talked to all of our workers yet.

Do you believe this change could open the H-2A program up to more nurseries?

It’s the change growers have needed. A lot of growers that have been on the fence about H-2A can do it now, because it’s finally affordable for them. They’ve been struggling for labor for years. They haven’t been able to afford the other wage, but now it’s a no-brainer for them.

Has the government shutdown impacted H-2A requests for spring 2026?

It hasn’t yet, because the minimum file time is 60 days. A lot of our orders start in January and so the first part of November is the beginning of that 60-day period. If we go past that with the government shutdown, we’re going to have to file emergency job orders. We believe they’ll accept them and still have the correct start date. We have confidence that we’ll be fine.

For more: legacylabor.com