H-2A overhaul brings much-needed visa streamlining and AEWR relief, while court battles and implementation questions remain.
The ag labor landscape looks much different at the end of 2025 than it did in January, amid several policy updates. The fresh produce industry has long advocated for the need to reform and streamline the H-2A guest worker program, and some changes have come to fruition.
The year featured several key shifts. In August, the USDA’s National Agricultural Statistics Service announced it would discontinue the agency’s Farm Labor Survey, which the Department of Labor previously used to set the minimum Adverse Effect Wage Rate. In October, the DOL issued an interim final rule that fundamentally changes how the AEWR is calculated. In addition, the Department of Homeland Security moved to streamline the H-2A petition process, a change that now allows DHS and the DOL to concurrently process H-2A visas. Finally, the Trump administration also took steps to halt and repeal the DOL’s controversial 2024 Worker Protection Rule.
“We’ve had a great 2025 both on the regulatory side,” says Michael Marsh, president and CEO of the National Council of Agricultural Employers. “I’m optimistic we’re going to be able to get a lot done in 2026.”
Diane Kurrle, senior vice president of the U.S. Apple Association, says that, for the most part, these regulatory changes are a win for the industry.
“What’s in the interim final rule is much better from the perspective of the apple industry than what the status quo had been, which was pushing apple growers out of business,” she says. “Which was driven by just the dramatic increases that AEWR had year after year and how out of sync it was with the rest of the economy.”
Potential Challenges
With comment period for the interim final rule on how AEWR is calculated now closed, the industry awaits any potential updates to the rule. There have also been some legal challenges that will play out in court.
In November, the United Farm Workers of America, the UFW Foundation and individual farmworkers filed a lawsuit in the U.S. District Court for the Eastern District of California to halt the interim final rule.
“Our understanding is that the administration is going to step in and defend that rule,” says Rebecca Hause-Schultz, a partner with Fisher Phillips, a law firm that specializes in labor and employment law. “We expect there will be groups filing amicus briefs in support of the rule.”
While this law isn’t perfect and there are questions about how the Standard Occupational Classification codes in the interim final rule would be assigned, Hause-Schultz says this is a net positive.
“I think, on the whole, the industry is happier with the interim final rule than an AEWR that was spiraling out of control just exponentially year over year,” Hause-Schultz says. “So, we expect there to be some support in the industry to support the administration’s effort to defend that rule and the rollout and what they did.”
Implementation Challenges
Kate Tynan, senior vice president for the Northwest Horticultural Council, agrees, noting that she hopes for more clarity as the DOL assesses public comments.
“It’s now just more a matter of understanding exactly how to apply [it]. Is a job going to be considered Skill Level 1 or Skill Level 2? I think that’s the biggest question folks have, which again, it’s more of an administrative issue,” she says. “Anytime you have a new regulation come out, especially with a program that’s already as complex as the H-2A program, trying to understand how that’s all going to play out is always a challenge. It’s good news across the board. It’s just kind of the devil’s administrative details of this structure.”
Hause-Schultz says one thing she’s heard from clients is a lot of inquiries on how other agricultural operations will set wages for 2026.
“The biggest question I’m getting is, ‘OK, what are we doing? Are we keeping rates? Are we freezing rates? Are we going down to the minimum that we can pay? Are we kind of meeting somewhere in the middle? What are we doing in response?’” she says. “That has been all over the map of what employers plan to do for their next contract.”
Tom Bortnyk, senior vice president of development and general counsel for H-2A provider másLabor, says one bright spot in some of this wage variability is the potential for upward mobility of farmworkers, where new workers without experience might start at a lower wage with the potential to reach the wages of established workers.
“You start to see market forces, even though this rule has only been in effect for a couple of months, where they say, ‘OK, now workers have some choice,’” he says. “Now there’s actually competition in the labor market. And now, on top of that, there’s upward mobility for the first time.”
Additional Considerations
Hause-Schultz says another thing to keep in mind is that with any major change, leadership must communicate these adjustments to workers openly and transparently.
“I’m a big proponent of having informational sessions with employees whenever there is a large change in your operation and being candid about this is what we’re doing,” she says. “This is why we’re doing it. Here’s how it’s going to impact you and information about who to contact. If they have further questions, just open lines of communication, I think on both sides — so that the employee does feel heard and doesn’t feel like they need to go to a third party to get that open ear and line of communication open — so that you’re that entity that they trust.”
Having an approachable person in human resources who can communicate effectively with employees is important, as changes like this, especially if an operation makes a huge wage shift, could leave an agriculture employer open to outside campaigning, Hause-Schultz says.
There’s also the potential for a government shutdown that could also impact H-2A visa processing. However, the produce industry advocated for the DOL to make those processing visas essential during the 43-day shutdown this year. Funding runs out Jan. 30, 2026, which could not come at a worse time for those using the H-2A program.
“That’s when we start filing all those petitions for all those needed workers that we don’t have coming out to the farm and on the ranch,” says NCAE’s Marsh.
Chris Ball, CEO of másLabor, says that while there might be potential issues with visa processing, it’s likely the specialty crop industry won’t truly understand the impacts of the Department of Government Efficiency workforce cuts until March or April. He does say the administration has been working to mitigate potential issues. Consular capacity and appointment availability and the impacts of any reductions in workforce at the State Department could impact H-2A recruitment.
“We don’t know what, how much staffing they’ve cut at these consulates,” Ball says. “So, until we start trying to make these appointments … we’re just not going to know what that looks like compared to previous years.”
Looking Ahead
Marsh says he hopes to wrap up the litigation that is ongoing with the departments of Labor and Homeland Security, as well as pending AEWR litigation filed in the U.S. District Court for the Middle District of Florida in Tampa.
“We’ve been in negotiation with the Department of Justice to try to put more of a bow overall on that litigation and make sure that something like the Farm Labor Survey can never again be misused to establish wage rates in the H-2A program,” he says.
Marsh also hopes to finish rulemaking for the rescission of the worker protection rule with the Department of Homeland Security.
“The administration will be reviewing all of the comments that they received on that regulation, and that will become a final rule after it goes through that process,” he says.
NCAE has been working with the State Department to provide more transparency on the visa processing, as some growers that use farm labor contractors also have had workers tied up in administrative processing, Marsh says.
Mike Wenkel, chief operating officer with the National Potato Council, says one of the big hurdles in 2026 and beyond will be how the government addresses the existing workforce. He says the administration’s policy is that those who are here illegally need to go home and return through legal channels.
“What does that continue to look like as the administration works through their overall immigration policy, and how do we keep the workforce needed for agriculture in place? That, to me, becomes a question of: If it’s everyone needs to go home, be deported … and your only way to come back into the country is H-2A, can we meet the needs through that program? Can we legislatively or administratively create a process to allow those individuals to continue working, not as citizens, but give them that temporary legal status?”
As the calendar turns to 2026 and midterm elections loom, there is concern about whether Congress has the appetite to tackle big legislative changes when it comes to ag labor.
“There’s been an agriculture emergency with regard to ag labor costs now for the better part of a decade, and they haven’t been able to get something across the finish line,” Kurrle says.
Wenkel says it’s likely the window for legislative change gets smaller as the calendar inches toward 2026, but it’s something the Ag Workforce Coalition monitors to see if something can happen.
“The time to strike is now,” Marsh says.
Sources say U.S. Rep. GT Thompson, R-Pa., has been working on a piece of legislation to address ag labor following the policy updates, which pulls from recommendations made in the Agriculture Labor Working Group that Thompson chaired. There’s the potential between now and the end of the year that Thompson introduces this legislation and likely has support from House leadership.
Marsh says those recommendations made in the bipartisan Ag Labor Working Group were made by those working in the ag labor space.
“It actually was developed by the people who actually use the program, rather than politicians thinking they know what’s best,” Marsh says. “Agents, attorneys, farmers and ranchers developed this proposed legislation, so hopefully the chairman will utilize a lot of that data.”
Bortnyk says there could be more policy updates coming in 2026 to help ease some regulatory burdens and make the H-2A program more predictable and stable.
“What I would say to anybody who’s trying to look into the crystal ball and try to figure out what might be coming next, I think a good starting point would be looking at what the H-2A working group put together when [U.S. Labor] Secretary [Lori] Chavez-DeRemer was in Congress,” he says. “Famously, she was on the congressional working group that looked at the H-2A program and looked to possible recommendations for program changes and improvements, and a lot of the things that they’ve already done since taking office have been on that list of recommendations by that working group.”
Updated December 16, 2025 08:45 AM
https://www.thepacker.com/how-2025-policy-shifts-will-define-farm-labor-2026
