H-2A Employers Face Potential Backpay Exposure Under Court-Ordered AEWR Changes

By | Employment Blog
September 4, 2026

On September 2, 2026, the U.S. Department of Labor’s Office of Foreign Labor Certification announced that certain H-2A employers may become responsible for retroactive wage adjustments after the Department adopts a new methodology for calculating Adverse Effect Wage Rates.

The announcement follows an August 26, 2026 order in United Farm Workers, et al. v. DOL, et al., No. 25-cv-01614-KES-EGC. The court held that the DOL’s October 2025 interim-final-rule methodology is unlawful but has left the rule and existing AEWRs temporarily in place while the DOL develops a replacement.

Employers may eventually be required to make wage-adjustment payments if the replacement AEWRs exceed the hourly wages paid to qualifying H-2A workers or U.S. workers in corresponding employment. Under the DOL’s notice, the period potentially subject to adjustment began September 2, 2026, and will end when the DOL issues new AEWRs under the replacement methodology. No back-pay obligation exists at this time.

What H-2A Employers Should Do Now

Employers should continue paying the currently applicable AEWR and complying with all existing H-2A requirements. They should also:

  • Preserve complete payroll and hours-worked records for affected workers.
  • Maintain each worker’s name, permanent home address, Social Security number if issued, Form I-94 number, email addresses, and telephone numbers when available.
  • Make reasonable efforts to keep workers’ contact information current.
  • Consider identifying potential financial exposure if replacement AEWRs are higher than current rates.

The Department emphasized that it continues to dispute whether retroactive wage-adjustment obligations may lawfully be imposed and is considering further litigation options. Employers should monitor additional Department of Labor announcements regarding the new methodology, transition procedures, and any eventual backpay requirements. The Department’s full announcement is available through the OFLC’s September 2, 2026 notice.

For any questions about this e-alert or its impact on your business, please contact our Immigration & Workforce Mobility team for assistance.

Back to all News & Insights

This document provides information of a general nature regarding legislative or other legal developments, and is based on the state of the law at the time of the original publication of this article. None of the information contained herein is intended as legal advice or opinion relative to specific matters, facts, situations, or issues, and additional facts and information or future developments may affect the subjects addressed. You should not act upon the information in this document without discussing your specific situation with legal counsel.

© 2026 Ruder Ware, L.L.S.C. Accurate reproduction with acknowledgment granted. All rights reserved.