Oct 21, 2025

NCAE sees a light at the end of the tunnel in labor battle

Unfortunately, it’s been far too long since agricultural employers have had much to cheer about, but perhaps we are starting to see some light at the end of the tunnel. At this point, it appears it’s not a train barreling down the tracks toward us.

Few farm and ranch families would say the regulatory changes from federal agencies beginning January 20, 2021, were minor. In our case against the Department of Labor’s (DOL) “Worker Protection Rule” in Kentucky, attorneys from the Department of Justice made that argument, but the district court judge disagreed and issued an injunction.

It was the second of three injunctions issued by different courts against the regulation. After NCAE’s victory, the Department of Labor could no longer enforce it against farm and ranch families and was compelled to begin the process of rescinding it. NCAE recently filed comments to help ensure this chapter is closed.

Winning

As that rescission process was moving forward, DOL announced it would be suspending the collection of new fees from participants in the H-2A program until further notice. This immediately reduced the application costs for users and allowed more dollars to remain in the pockets of those who feed and clothe our nation rather than transferred to government coffers.

However, DOL was not yet done. The Office of Foreign Labor Certification announced it was rescinding 2011 guidance that prohibited  the “staggering”  entry of temporary workers into the U.S. on a single petition. This rescission would allow employers to file a single petition for all their needed workers for a season but allow them to stagger their entry, thereby reducing the significant costs associated with filing multiple petitions. This was one of the streamlining recommendations NCAE made to the Department of Government Efficiency (DOGE) when we were asked to help cut H-2A users’ costs in using the program, and we were happy to help.

H-2A news

H-2A program users received some good news as the Department of State eased the requirement that all temporary workers would have to go through an interview. Previously, interview waivers had been used to expedite the consular process and speed essential workers to  farms and ranches.

NCAE submitted several letters to Secretary Marco Rubio, cabinet officials  at labor and agriculture, and  the White House, while also pressing our contacts at the State Department to encourage them to adjust its policy. The State Department, like other agencies, experienced a significant reduction in force at the start of the new administration. Additional consular support previously provided  by USAID was eliminated, contributing to delays as consulates’ workload exploded with too few hands available to do the necessary work. Kind of like the labor shortages experienced by farm and ranch families.

White House meeting

NCAE has scheduled a meeting with the White House Office of Information and Regulatory Affairs to discuss the DOL’s plans for the Adverse Effect Wage Rate (AEWR) following the vacatur of the 2023 AEWR rule by the federal district court in Louisiana.

The DOL has filed a Notice of Proposed Rulemaking for an Interim Final AEWR rule (IFR), which would become effective upon its publication in the Federal Register. We expect this process to move very quickly due to the unique nature of an IFR. Part of the rationale for the IFR is tied to the fact that USDA has ceased the data collection process for its Farm Labor Survey (FLS), which DOL has historically misused to establish H-2A wage rates.

NCAE will testify that the disaggregated wage rates that the Louisiana court found to be arbitrary and capricious should not be reinstated under the new rule. We will also advocate that wage rates should be determined by the market, just like the prices for a farmer’s or a rancher’s crop, rather than a government mandate that disconnects the rates from the market.

The DOL’s misuse of that data has forced America’s food production to flee our shores and provided our foreign competition an open door to capture market share, forcing the closure of thousands of family farms. We are encouraged that Secretary Brooke Rollins has listened to our pleas for relief.

— Michael Marsh has led the National Council of Agricultural Employers since 2017. A Wyoming native and certified public accountant, Marsh worked for a CPA firm with farm and ranch clients investigating fraud. He was director of finance for the Almond Board of California for 7 years and for 15 years was CEO of the largest U.S. dairy producer trade association.