Union lawyer Kuntal Cholera, of Covington & Burling LLP in Washington, D.C., said the changes have drastically reduced the wages of H2A workers and triggered lower wages for non-H2A farmworkers.<\/p>\n
He said the DOL\u2019s new rules classify most farmworkers as low skilled, placing them in the bottom tier of the salary scale. But that doesn\u2019t come close to reflecting the market rate salary for farmworkers overall, a key factor in ensuring H2A workers\u2019 wages don\u2019t adversely effect those of other farmworkers.<\/p>\n
Cholera also criticized the changes in the requirement that farmers must provide housing for guest workers. Although DOL officials said they have not eliminated the housing requirement, it has changed.<\/p>\n
Patrick Keating, trial attorney for the U.S. Department of Justice, said the government added an \u201cadjustment factor\u201d to the program that allows employers to adjust the hourly wage to account for the cost of housing.<\/p>\n
Cholera said it still sounds like the H2A worker is losing out.<\/p>\n
\u201cWell, the DOL may say, \u2018We\u2019re not eliminating it, we\u2019re just reducing your pay to account for it,\u2019\u201d Cholera said. \u201cRespectfully, that doesn\u2019t make any sense. I mean, if you\u2019re reducing someone\u2019s pay to account for something, that thing isn\u2019t free.\u201d<\/p>\n
One of the complaints about the H2A program is that it was too costly for most farmers. In fact, many agricultural groups have been in support of the changes, saying, in part, that it helps lower labor costs during a time of severe labor shortages.<\/p>\n
But Cholera said statistics show a steady increase in the number of employers using guest worker labor, not a decline.<\/p>\n
According to the American Farm Bureau, H-2A positions have grown by more than 25% since fiscal year 2021, rising from 317,619 to 398,258 in fiscal year 2025.<\/p>\n
Cholera also said the notion that not having enough workers is a threat to the nation\u2019s food supply is exaggerated. \u201cThere\u2019s no reason why they needed to accelerate a drop in wages in order to address a food crisis or a labor shortage,\u201d he said. \u201cThere\u2019s no reason why farm establishments couldn\u2019t just hire more labor at approximate market rates. We would submit that would probably make it easier to solve the labor crisis, not harder.\u201d<\/p>\n
The judge asked the government\u2019s attorney why there wasn\u2019t any data in the interim final rule (IFR) showing evidence of a labor shortage. \u201cThere have been zero releases at the border by the government over a couple of months, but I\u2019m not seeing any citations to evidence that whatever was done at the border had any effect on labor in agricultural,\u201d Sheriff said.<\/p>\n
Keating said an exact number is difficult to come by, given that many agriculture workers are not legal residents.<\/p>\n
\u201cI do think that the IFR contains a fair amount of evidence to suggest that given that there\u2019s an increase in H2A certification requests, and given that there\u2019s a generalized decrease in illegal immigration, that it would then logically follow that there is also a decrease in labor,\u201d Keating said. \u201cOtherwise, why would farmers that typically rely on unregulated labor then turn to H2A?\u201d<\/p>\n
The judge said at the close of the nearly two-hour hearing in Fresno that he would issue his decision as \u201cexpeditiously\u201d as possible.<\/p>\n
This story was originally published August 19, 2026 at 4:55 PM.<\/p>\n
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