What DOL's September 2 Notice Means for H-2A Employers

If you employ H-2A workers, the Department of Labor's Office of Foreign Labor Certification sent you a notice dated September 2, 2026. It is written in careful legal language, and the important parts are easy to miss on a first read. Here is what it says, in plain terms.

‍Your current AEWRs remain in effect. Keep paying them. They stay in place until DOL publishes new rates.

‍No employer owes back wages at this time. DOL says this directly, and says it more than once. This notice is a warning about a possibility, not a bill.

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Why DOL sent the notice

On August 26, 2026, the U.S. District Court for the Eastern District of California ruled in United Farm Workers, et al. v. DOL, et al. (No. 25-cv-01614-KES-EGC) that the wage methodology in DOL's Interim Final Rule — Adverse Effect Wage Rate Methodology for the Temporary Employment of H-2A Nonimmigrants in Non-Range Occupations in the United States, 90 Fed. Reg. 47914 (Oct. 2, 2025) — is unlawful. That rule established the methodology DOL uses to calculate AEWRs.

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The Court did not vacate the rule, and it left the AEWRs already issued under it in place. Instead, it directed DOL to promptly produce a new methodology and promptly publish new AEWRs under it. It also ordered DOL to notify state workforce agencies, employers, and the public that back wage adjustments may be required in the meantime.

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The September 2 notice is DOL complying with that order. DOL was explicit that complying does not mean agreeing: it states that its compliance is not a waiver of its right to seek further review, and not an admission that a court has authority to compel back wage adjustments at all.

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The part that matters: a back wage period is now open

Here is the language the Court required DOL to pass along:

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Employers who hired or otherwise utilized H-2A labor that was governed by AEWRs published under the IFR between the date [of this notification] and the date on which a new AEWR methodology is issued pursuant to this Order (the "backpay period") may be required to make wage adjustment payments to qualifying H-2A workers and U.S. farmworkers in corresponding employment who worked during the backpay period, if those workers received an hourly wage below the new, applicable AEWRs generated under the new methodology.

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Translated: a window opened on September 2, 2026. It closes when DOL publishes new AEWRs under a new methodology. If those new rates land above what was paid during the window, employers may be asked to pay the difference for work performed inside it.

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One detail worth pausing on — the obligation would reach U.S. workers in corresponding employment, not only H-2A workers. Any eventual calculation would cover your domestic crew doing the same work.

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Who the notice applies to

DOL identifies three groups:

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1. Employers previously granted temporary labor certification where the certified end date of employment remains valid as of September 2, 2026, including any approved extensions
2. Employers with a pending H-2A Application for Temporary Employment Certification
3. Employers who file a new H-2A Application for Temporary Employment Certification after September 2, 2026 and before the OFLC Administrator publishes a new AEWR methodology

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If you fall into any of the three, the notice is addressed to you.

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What DOL asks employers to do

The notice contains one concrete request, and it is the only action item in the entire document.

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Employers must continue to adhere to all applicable laws and maintain accurate and adequate earnings records under 20 C.F.R. § 655.122(j). As part of that obligation, DOL reminds employers to record — and to make reasonable efforts to keep current — the following for all H-2A workers and U.S. workers in corresponding employment who may later be entitled to backpay:

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• Name
• Permanent home address
• Social Security Number, if one has been issued
• Form I-94 Arrival/Departure Record Number, where available
• Permanent email address, where available
• Phone number, where available

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It reads like routine recordkeeping language, but note what DOL is actually asking for: permanent home addresses and personal contact information, kept current, for workers who might need to be paid later. That is a list built for finding people after a season ends. Employers should treat it accordingly and gather this information while their crews are still on site.

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What happens next

DOL says it is considering its next steps both in the litigation and on the methodology itself. It states plainly that it will continue to contest whether back wage obligations can lawfully be imposed, while meeting its responsibilities through program administration and rulemaking.

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OFLC will notify the public when a new AEWR methodology is set and will provide transition procedures at that time. DOL has also committed to issuing further notice if the Court rules on potential backpay.

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Until then, the guidance is straightforward: keep paying your current AEWRs, keep complying, and get your worker records in order.

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