By Clint Thompson
Just when Southeast specialty crop growers thought they had found some certainty with regards to the adverse effect wage rate (AEWR) they were paying within the H-2A program, a federal court ruling has provided more uncertainty.
A federal judge has ruled that the Department of Labor’s (DOL) current AEWR methodology is unlawful. Multiple provisions were found to not be adequately justified. While the court did not immediately vacate the rule, the DOL has been ordered to develop and publish a new methodology.
GFVGA Testimonial
It feels like one step forward and two steps back for fruit and vegetable farmers, including those in the Georgia Fruit and Vegetable Growers Association (GFVGA) where Chris Butts serves as executive director.
“I think frustration would be the number one emotion that our growers are experiencing just because once again they do not know what their wages will be. We’re in a little bit of a lull between spring and fall seasons and there are guys that will be bringing on workers in the coming weeks for the for the fall and for the upcoming spring. They don’t know what their pay rates will be,” Butts said.
“The timing is not good in terms of people renewing contracts, and we’ve got contracts that’ll come to an end soon and new ones will start. We have other folks that kind of work mid-year to mid-year, and they have no idea what their wages are going to be. When wages are half of your expenses and you can’t predict what they’re going to be, it’s not long that it becomes a very unsustainable model.”
The GFVGA noted in an email that the court found multiple parts of the current methodology, including the two-tier wage structure, housing adjustment, reliance on certain wage data and the greater than 50% occupational classification rule were inadequately justified
The DOL issued an interim final rule in October 2025 after a federal court vacated the 2023 AEWR rule and the U.S. Department of Agriculture discontinued the Farm Labor Survey.
Legislation Needed
This latest frustrating chapter in the H-2A program also allows leaders like Butts to continue advocating for U.S. Representative GT Thompson’s (PA-15) Securing Agriculture’s Workforce Act of 2026.
“It’s just one more one more reason the coalition believes that we need permanent legislative fix to the program which is available through chairman Thompson’s bill,” Butts said. “All of this can be solved by passing this bill. Had the bill already been passed, we wouldn’t be having this conversation. It’s really urgent now that we get this fixed this Congress before the end of the year so that we can maybe go into the next year with a little bit more certainty.”
FFVA Statement
The Florida Fruit & Vegetable Association (FFVA) issued the following statement in response to the announcement:
“Today’s decision is a reminder that lasting reform cannot come through regulation alone, and the prospect of growers facing backpay liability for complying with a federal regulation is deeply concerning,” said Jamie Fussell, director of labor relations at the Florida Fruit & Vegetable Association.
“As the nation’s largest user of the H-2A program, Florida agriculture has long called for reforms that improve access to a legal, reliable workforce and bring greater stability to program costs. Despite significant rulemaking efforts to improve the program, the growers who rely on it remain subject to ongoing legal and regulatory uncertainty.
“Congress must act with urgency to finally secure the reforms needed to the H-2A program and provide growers with certainty to continue feeding American families. Continued inaction only makes it harder to keep food production here at home.”