Update on H-2A Policy and Legal Developments
NC Chamber General Counsel Ray Starling provided the following update on recent federal policy changes and litigation impacting the H-2A temporary agricultural worker program, a critical issue for North Carolina agriculture.
As North Carolina’s agricultural industry faces new challenges and opportunities, the NC Chamber’s coalition leadership and research efforts remain strong and effective in key federal policy discussions. We can only do this work because of your support, and we are grateful for that support and your trust.
The Trump Administration has taken multiple policy actions impacting the H-2A program that are intended to streamline employer access, lower costs, and update wage determination methodology. The following are key actions taken over the course of the first year and few months of the Trump Administration.
Notably, and perhaps most relevant to folks reading this update, DOL made long-awaited changes to the AEWR methodology. The DOL’s new wage methodology rule (which is actually an “interim” rule but is fully in effect for this calendar year) fundamentally altered how employers calculated minimum wages for H-2A workers, replacing the historical reliance on the USDA’s Farm Labor Survey (FLS). The 2025 interim rule revised the wage determination methodology by more closely aligning AEWR calculations with labor market conditions. The rule expanded the use of the Bureau of Labor Statistics’ Occupational Employment and Wage Statistics (OEWS) to set the wage for H-2A occupations, a policy decision that was required as a result of the USDA rescission of the FLS.
The interim rule also establishes wages based upon two skill levels and sets wages based on occupational category, combining most agricultural jobs into a single occupational category. Put differently, the interim rule determines wage rates using an occupational classification framework, under which many agricultural positions are grouped within a limited set of categories, often resulting in a single rate for a broad range of farm work. That said, the interim rule continues to require unique wages for other job classifications (e.g. truck drivers), but DOL did implement a “majority duties” test so that workers are paid for the job duties they do the majority of days of the contract.
The practical effect of this is that most North Carolina farmers who rely on H-2A workers will pay an hourly rate of $12.69 for those in Skill Level I. Additionally, the IFR establishes an Adverse Compensation Adjustment (ACA) that provides a wage adjustment for the cost of housing. In North Carolina, that adjustment brings the hourly rate down to $11.09/hour. In sum, the result of the IFR was wage relief for most H-2A job occupations across the country, and in North Carolina it results in a 31% savings compared to the 2024 AEWR.
What does the NC Chamber have to do with any of this? I’m glad you asked.
Early in 2025, recognizing the critical role of the H-2A visa program in North Carolina agriculture, the NC Chamber brought together a coalition of similarly situated H-2A reform advocates and engaged H-2A legal experts to directly identify opportunities where we might influence policy decisions. The NC Chamber commissioned a policy and legal memo from outside counsel which was used to provide analysis that justified certain policy changes surrounding the AEWR. The memo utilized earlier work commissioned by the Chamber in 2024, Dr. Blake Brown’s report “A Broken Baseline: The Flawed Economics Behind AEWR Calculations.” Putting these two things together, the Chamber was able to make both a legal and economic case as to why it was necessary to modify the AEWR methodology. These insights were subsequently referenced in several agency documents and highlighted the state’s unique labor needs, wage structures, and the broader implications for farm sustainability. Additionally, the NC Chamber coalition submitted extensive comments on the interim rule, which we believe will play a significant role in guiding these reforms and ensuring that North Carolina’s unique agricultural labor needs continue to be represented.
Not surprisingly, the AEWR interim rule was challenged in court by the United Farm Workers (UFW) in the Eastern District of California, Fresno Division. In United Farm Workers, et al., v. Laurie Chavez-Deremer, et al., Case No. 1:25-cv-01432-JLT-SAB (E.D. Cal.), The UFW and allied plaintiffs argue that the revised AEWR methodology fails to adequately protect farmworkers’ wages and that DOL did not properly justify the use of an IFR as required under the Administrative Procedure Act. Recognizing the need to support both the substantive changes provided in the interim rule and the Administration, the NC Chamber submitted an Amicus Brief as a “Friend of the Court,” signed by 28 agricultural groups. The case has been fully briefed, and the court has heard oral arguments. A decision is expected in the coming weeks, possibly sooner.
Additionally, the Department of Homeland Security (DHS) pursued regulatory activity related to petition processing creating an electronic I-129H2A. This change allows U.S. Citizenship and Immigration Services (USCIS) to begin processing petitions earlier—specifically after DOL issues a notice of acceptance for a Temporary Labor Certification (TLC), but before the TLC is formally approved. This procedural shift should accelerate access to legal foreign labor for American farmers.
Despite positive programmatic changes, in recent weeks there have been reports of delays causing disruptions as we get into busy season. First, USCIS has experienced technical issues causing backlogs for H-2A employers. The Chamber continues to work closely with its counterparts to advocate expediated processing to prevent delays. Second, there has been increased screening and no interview waivers at consulates around the world. The backlog at consulates is very problematic. We’ve made efforts to encourage the Administration to reinstate interview waivers and ensure proper resources are allocated to expedite H-2A processing.
Finally, the DOT Non-Domicile CDL IFR has significantly affected H-2A employees nationwide. The DOT IFR restricts the ability for states to issue non-domiciled individuals a CDL except for H-2A, H-2B, and E-2 visa holders. However, there has been a patchwork of state compliance efforts causing many states to pause CDL processing. The list of states that are currently under restrictions can be found here, including North Carolina. Additionally, the Administration is also enforcing existing English proficiency standards for all CDL drivers.
Looking forward, the NC Chamber continues to see opportunities for engagement. The Administration remains interested in identifying further regulatory reforms that streamline the H-2A program to ensure the program is not cost prohibitive and a regulatory dead end. Legislatively, Chairman GT Thompson continues to work on ag labor legislation, which we expect will seek to codify necessary H-2A reforms. Also, Senator Ted Budd has introduced the FARM Stability Act which, if passed, would codify the AEWR reforms. A large coalition of North Carolina entities issued a letter praising Senator Budd for his leadership.
While we are proud of the work we’ve led in the H-2A space, we recognize we are not the only group working in this space. In particular, we are grateful for our partnerships with the North Carolina Farm Bureau and with the NC Sweetpotato Commission, both of which have supported our work while working directly on efforts of their own (which we also support). The NC Agribusiness Council has also supported the work, as have our two Farm Credit Associations. In fact, in my estimation, there has never been a time when North Carolina’s advocacy organizations were more aligned in our pursuits of H-2A reforms that will help our farmers. Our coalition continues to engage with relevant agencies to discuss additional regulatory improvements. As the regulatory environment continues to evolve, this collaborative approach remains essential for protecting farm viability and advancing policy solutions tailored to North Carolina’s needs.