H-2A Employers: DOL Warns of Possible Back Wages

On September 2, 2026, the Department of Labor’s Office of Foreign Labor Certification (OFLC) issued an announcement that’s already generating a lot of questions from H-2A employers about possible H-2A back wages. The headline sounds alarming — “back wage adjustment payments” — but the details matter a lot more than the headline. Here’s a plain-English breakdown.

What Triggered This

Back in October 2025, DOL rolled out a new methodology for calculating the H-2A Adverse Effect Wage Rate (AEWR) — the minimum wage employers must offer H-2A workers so U.S. wages aren’t undercut. That new methodology leaned on the Bureau of Labor Statistics’ Occupational Employment and Wage Statistics (OEWS) survey.

A group of plaintiffs, including United Farm Workers, sued. On August 26, 2026, a federal court in the Eastern District of California ruled that this methodology is unlawful. But — and this is the key part — the court didn’t throw out the rule or the wage rates that came from it. Instead, it ordered DOL to:

Develop a new methodology for calculating AEWRs, and
Publish new AEWRs under that methodology, and
Warn employers, state workforce agencies, and the public that back wages might eventually be owed.

DOL’s September 2 announcement is that warning — issued because a court ordered it, not because DOL is conceding the point. In fact, the notice is explicit that DOL disagrees with the ruling and intends to keep fighting it.

What This Does NOT Mean

No employer owes back wages right now. The notice says this outright.

Current AEWRs are still in effect. Nothing about your current wage obligations changes today.

What This DOES Mean

A “backpay period” has started — running from September 2, 2026 (the date of this notice) until whenever DOL publishes a new AEWR methodology and new rates. If the new AEWRs come in higher than what was paid during that window, workers who were paid below the new rate during that period could be entitled to a retroactive top-up once the new rates are finalized.

This potentially applies to:

Employers whose current H-2A certification is still valid (including approved extensions),
Employers with H-2A applications pending right now, and
Employers who file new H-2A applications from here forward, until a new methodology is published.

In short: almost the entire H-2A employer population is inside the window DOL is flagging.

The One Thing to Actually Act On

DOL used this notice to remind employers of an existing recordkeeping obligation under 20 CFR § 655.122(j): employers need to maintain accurate, current records for every H-2A worker and every U.S. worker in corresponding employment, including:

Full name and permanent home address
Social Security Number (if issued)
Form I-94 Arrival/Departure Record Number (where available)
Current email address and phone number

The reason this matters right now: these are the exact people who would need to be located and paid if a backpay obligation ever materializes. Employers who let this recordkeeping slide could face real headaches down the road trying to track down workers to issue adjustments — on top of the compliance exposure of not maintaining the records in the first place.

Bottom Line

Nothing changes in your day-to-day H-2A wage obligations today. But this is a live legal situation with a real, if uncertain, exposure attached to it, and DOL itself is telling employers to get their records in order. The smart move right now isn’t to panic — it’s to make sure your worker records are complete and current, and to keep an eye on when DOL publishes its new AEWR methodology, since that’s the number that will determine whether this becomes a real cost or a non-event.

We’ll keep tracking this and will update as soon as DOL issues the new methodology or the litigation moves.

This post is for general informational purposes and isn’t legal advice. If you have H-2A workers on staff or applications in process, talk to your immigration counsel about how this affects your specific situation.

Source: U.S. Department of Labor – Office of Foreign Labor Certification, Announcements. https://www.dol.gov/agencies/eta/foreign-labor