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Federal Register / Vol. 86, No. 228 / Wednesday, December 1, 2021 / Proposed Rules
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The changes in wages constitute a transfer from H2A employers to H2A
employees for SOC codes set by the OEWS survey. For SOC codes set by the FLS AEWR there is no wage impact, unless the worksite location is in Alaska or Puerto Rico where no AEWR
currently exists because the FLS does not collect wage data covering these geographic areas.94 To account for the growth rate in H2A workers the total transfers in each year are increased annually by the estimated growth rate of H2A workers 5.6 percent.95 The results are average annual undiscounted transfers of $29.50 million. The total transfer over the 10-year period is estimated at $295.00 million undiscounted, or $254.20 million and $211.87 million at discount rates of 3
and 7 percent, respectively. The annualized transfer over the 10-year period is $29.80 million and $30.17
million at discount rates of 3 and 7
percent, respectively.
The estimated transfers are likely on the high end of potential transfers. The Department does not make any adjustment to account for H2A
certifications that are made but do not end up in jobs with realized wages. In FY 2020, according to State Department data, there were 213,394 H2A visas issued.96 In FY 2020 there were 275,430
workers associated with H2A
certifications. The Department is unable to verify the specific H2A certifications that do not end up in materialized jobs and so cannot adjust wage transfers to account for differences in regional, and by-SOC code, job materialization.
Overall, the data on H2A visas compared to workers associated with H
2A certifications indicates that about 80
percent of certified positions have associated H2A visas. The remaining 20 percent could be jobs that did not materialize or were filled by U.S.
workers.
The increase or decrease in the wage rates for H2A workers also represents a wage transfer from employers to 94 There is no FLS wage available for Alaska or Puerto Rico. Because of that, wages under the baseline are set by the public OEWS State data.
Under the proposed rule, for SOC codes that have worksite locations in Alaska or Puerto Rico, the hourly wage would be set by the weighted average hourly wage rate calculated by BLS. Therefore, those certifications may have a wage impact under the proposed rule.
95 Total transfers in each year are increased with the following formula to account for an annual increase in the underlying population of H2A
workers: Transfer1.056Current year Base year.
96 U.S. Department of State, Nonimmigrant Visas Issued by Classification, Fiscal Years 20162020, available at https travel.state.gov/content/dam/
visas/Statistics/AnnualReports/FY2020
AnnualReport/FY20AnnualReport-TableXVB.pdf.

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corresponding workers performing similar work for the employer, not just the H2A workers employed under the work contract. The higher or lower wages paid to H2A workers associated with the proposed rules methodology for determining the AEWRs will also result in wage changes to corresponding workers. However, the Department does not collect or possess sufficient information about the number of corresponding workers affected and their wage payment structures to reasonably measure the transfers to corresponding workers. Employers are not required to provide the Department, on any application or report, the estimated or actual total number of workers in corresponding employment.
Although each employer, as a condition of being granted a temporary labor certification, must provide the Department with a report of its initial recruitment efforts for U.S. workers, including the name and contact information of each U.S. worker who applied or was referred to the job, such information typically reflects only a very small portion of the total recruitment period, which runs through 50 percent of the certified work contract period, and does not account for any other workers who may be considered in corresponding employment and already working for the employer. And finally, the Department is also not able to estimate how much of the wage transfer stays in the U.S. economy. It is likely that a substantial portion of the wage transfer is from U.S. employers to the home economy of H2A workers.
Nonimmigrant foreign H2A workers may spend wages earned in the U.S., spend the money outside of the U.S., send the money outside of the U.S., or some combination. The Department invites comments regarding how these wage transfer impacts can be calculated.
Qualitative Benefits The proposed rule makes an important update to the AEWR to ensure that it protects U.S. workers in occupations where the existing wage methodology may adversely affect wages in certain occupations where the FLS does not adequately collect or consistently report wage data at a State or regional level e.g., truck drivers, farm supervisors and managers, construction workers, and many occupations in contract employment.
U.S. workers in these occupations would benefit from the protections afforded them by an AEWR determined using a more accurate data source.
The AEWR is the rate that the Department has determined is necessary to ensure the employment of H2A

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foreign workers will not have an adverse effect on the wages of agricultural workers in the United States similarly employed. A more accurate AEWR for workers in occupations where the FLS
is inadequate will guard against the potential for the entry of H2A foreign workers to adversely affect the wages and working conditions of workers in the United States similarly employed in these occupations. The potential for the employment of foreign workers to adversely affect the wages of U.S.
workers is heightened in the H2A
program because the H2A program is not subject to a statutory cap on the number of foreign workers who may be admitted to work in agricultural jobs.
Consequently, concerns about wage depression from the employment of foreign workers are particularly acute because access to an unlimited number of foreign workers in a particular labor market and occupation could cause the prevailing wage of workers in the United States similarly employed to stagnate or decrease.
Addressing the potential adverse effect that the employment of temporary foreign workers may have on the wages of agricultural workers in the United States similarly employed is particularly important because U.S. agricultural workers are, in many cases, especially susceptible to adverse effects caused by the employment of temporary foreign workers. As discussed in prior rulemakings, the Department continues to hold the view that U.S. agricultural workers need protection from potential adverse effects of the use of foreign temporary workers, because they generally comprise an especially vulnerable population whose low educational attainment, low skills, low rates of unionization and high rates of unemployment leave them with few alternatives in the non-farm labor market. 97 As a result, their ability to negotiate wages and working conditions with farm operators or agriculture service employers is quite limited. 98
The AEWR provides a floor below which wages cannot be negotiated, thereby strengthening the ability of this particularly vulnerable labor force to negotiate over wages with growers who are in a stronger economic and financial position in contractual negotiations for employment. 99
97 Proposed Rule, Temporary Agricultural Employment of H2A Aliens in the United States, 74 FR 45905, 45911 Sep. 4, 2009.
98 Id.
99 Id.

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