How to Apply the Interim Final Rule for H-2A Compliance
What H-2A employers need to know
The Interim Final Rule (IFR) was introduced October 1, 2025, and became effective immediately, without the benefit of phased guidance or transition support. It’s currently under litigation, which has slowed the release of formal agency interpretation. As a result, both H-2A employers and enforcement agencies have been operating in a partially undefined environment. The lack of formal guidance has left much up for interpretation. This has created a situation where H-2A employers must not only comply, but also be prepared to defend their decisions under scrutiny.
The National Council of Agricultural Employers (NCAE) held a webinar on April 3, 2026, titled From Paper to Practice: Engaging the IFR for Ag Employers. The goal was to update H-2A employers and agencies on critical points, nuances, and practical considerations to keep in mind as we move through the H-2A process.
The webinar was led by Ruben Lugo and Jeanne Malitz. Ruben is the owner and lead consultant of Impact Ag Labor, LLC, where he provides coaching, training, and compliance guidance to agricultural employers with an emphasis on the H-2A Program. Jeanne Malitz is the principal of MalitzLaw, Inc., a boutique law firm specializing in employment-based immigration matters.
This blog is designed to ensure H-2A employers are aware of these critical insights, considerations, and best practices in order to maintain compliance.
Skill Levels 1 and 2 just got more complicated
One of the central components of the IFR is the introduction of the Skill Level 1 and Skill Level 2 wage structure. This framework has been complicated by changes in the Occupational Information Network (ONET) classifications.
What changed
Previously, many of us interpreted Skill Level 1 versus Skill Level 2 largely based on tenure or months of experience, using the general framework from the IFR:
Skill Level 1= Entry level, typically 2 months or less
Skill Level 2 = More experienced, typically 3 months or more
However, the Department of Labor (DOL) ties these classifications to ONET Job Zones and (Specific Vocational Preparation (SVP) ranges, not strictly time worked. The key shift is that certain agricultural roles have been reclassified within ONET, specifically moving from Job Zone 1 into a broader Job Zone 1 – 2 range.
Impact on skill level classification
Each ONET Job Zone corresponds to a Specific Vocational Preparation (SVP) range, which defines the amount of preparation or experience required for a job.
Job Zone 1
SVP range: short demonstration to up to 3 monthsJob Zone 2
SVP range: anything beyond short demonstration up to 1 year
By expanding roles into a Zone 1 – 2 classification, DOL is effectively saying a position can require more than 3 months of experience, even up to 1 year, but still not rise to the level of a higher skilled classification.
This is where the confusion comes in. Under the updated structure:
A worker with 3 – 5 months of experience may still fall within the same ONET Job Zone
That means the role can still be classified as Skill Level 1, even though it exceeds the old “2 month” assumption
The bottom line? Skill level is no longer cleanly tied to months of experience alone. It must align with the ONET job zone and SVP range for that occupation.
Confusion has left things open for different interpretations
It’s important to know that skill level is no longer determined by a strict experience cutoff. Instead, it must be evaluated based on a combination of ONET job zone, SVP range, industry standards, and the nature of the duties being performed. ONET updates aren’t in sync with regulatory changes, which adds to the confusion and creates opportunities for differing interpretations between H-2A employers, SWAs, and DOL. In fact, some SWAs are issuing Notices of Deficiency when three months of experience is listed for Level 1, even though there is a strong argument that such positions still fall within Skill Level 1 under the updated job zone structure.
Shifts around worker duties, Job Orders, and SOC codes
Another major shift under the IFR is how SOC codes are determined. Under the previous rule, any duty that fell outside of the standard agricultural classifications could trigger a higher wage rate. The IFR changes this approach by focusing on the majority of duties performed. Specifically, the SOC code is now determined based on what the worker is doing for more than 50% of their workdays. This means that incidental or secondary duties no longer drive wage classification.
This change requires a much more deliberate approach to drafting Job Orders. H-2A employers must clearly define the primary duties and, where necessary, explicitly state that certain tasks are performed less than 50% of the time. Wage and Hour is expected to verify this through worker interviews, asking employees directly how they spend their time. This creates a direct link between what is written in the Job Order and what is observed in the field, making accuracy and consistency critical.
Highest applicable wage may vary across states
Wage data is now centralized in the FLAG system, which provides wage rates for both domestic and H-2A workers, broken down by skill level. A new component, called the Adverse Compensation Adjustment, has been incorporated into these rates. This adjustment accounts for the cost of employer-provided housing and is built directly into the newly-calculated AEWR. It’s not a deduction, not optional, and not something that can be applied separately. It’s already reflected in the wage rates provided by the system.
However, the presence of the AEWR does not override other wage requirements. H-2A employers are still required to pay the highest applicable wage, which may include the AEWR, prevailing wage, state minimum wage, federal minimum wage, or a collective bargaining agreement rate. Local wages, while not explicitly referenced in the regulations, are still being enforced in practice and have resulted in deficiencies in certain jurisdictions. This requires careful attention, particularly in regions with higher local wage ordinances.
Job Order adherence and specificity are critical for H-2A compliance
A significant portion of the webinar focused on the importance of the Job Order as an H-2A compliance document. The Wage and Hour Division (WHD) relies heavily on the Job Order when conducting investigations, comparing what was promised to what is actually occurring. Any discrepancies can lead to violations. This includes differences in job duties, wage structures, SOC classifications, and work conditions. Some employers are choosing not to reduce wages even when the IFR allows it, due to concerns about worker retention, perception, and potential compliance risks.
To mitigate these risks, H-2A employers can include specific language in Job Orders that allows for wage flexibility based on experience, tenure, or skill. It’s important to develop objective criteria for higher wages and document those criteria clearly. This is particularly important in avoiding claims of preferential treatment, where H-2A workers are paid more than domestic workers without a defensible and consistently applied justification. USA Farm Labor automatically adds verbiage to your Job Order that allows you to pay higher wages at your own discretion.
Certification doesn’t equal H-2A compliance
From an enforcement perspective, certification approval does not equate to H-2A compliance. The H-2A process includes four phases: certification, visa processing, active employment, and contract completion. The majority of violations occur during the active employment phase, where Wage and Hour conducts investigations. These investigations may be triggered by worker complaints, advocacy groups, SWA referrals, or targeted enforcement efforts based on data.
Best rule of thumb: Be prepared for an investigation
All H-2A employers should expect to be investigated at some point. Current enforcement conditions are somewhat inconsistent due to recent government shutdowns, staffing changes, and the lack of formal IFR training for investigators. This means investigators may interpret the rule differently, and employers may encounter varying levels of scrutiny. In this environment, maintaining strong documentation and being prepared to explain and defend decisions are essential.
Investigations typically involve opening conferences, worker interviews, payroll reviews, housing inspections, and closing conferences. Worker interviews are particularly important, as they can reveal discrepancies between Job Orders and actual operations. Investigators may ask detailed questions about daily routines, time spent on tasks, and work conditions. This can also uncover related issues, such as unpaid work time or improper wage calculations.
Be aware of potential risks
H-2A employers should understand several key areas of risk, including:
Inaccurate Job Orders
Incorrect SOC classifications
Improper skill level assignments
Preferential treatment
Wage miscalculations
Non-agricultural work being performed under H-2A status
Poor housing conditions
Steps H-2A employers can take to ensure H-2A compliance
To ensure compliance, H-2A employers are encouraged to follow these practical steps:
Updating Job Order templates to reflect the new requirements
Reevaluating how skill levels are assigned
Establishing clear and objective wage policies
Training supervisors who are responsible for day-to-day operations
Conducting internal audits of housing and payroll practices
Maintaining thorough documentation of all decisions and processes
The IFR introduces both a challenge and an opportunity
H-2A employers who take the time to understand the rule, apply it thoughtfully, and document their decisions will be in a strong position to manage risk and optimize their operations. Those who rely on rigid interpretations or fail to align their Job Orders with actual practices are more likely to face challenges during enforcement.
USA Farm Labor key takeaways and recommendations for H-2A employers
Under prior interpretation and industry practice, a significant portion of H-2A Job Orders were structured as Skill Level 2 positions, particularly for agricultural equipment operator type duties. However, under updated Department of Labor clarification tying classifications to ONET Job Zones and SVP ranges, many of these roles may more appropriately fall within a Job Zone 1 – 2 framework. As a result, employers should anticipate a shift in how positions are classified moving forward, particularly as enforcement aligns more closely with the regulatory intent behind 20 CFR 655.103 and related guidance.
It’s important to note that Job Orders which have already been certified by the DOL can’t be retroactively modified. Employers must continue to operate in accordance with the terms and conditions of the certified application. However, all future applications and certifications should be structured in alignment with this updated guidance to ensure compliance moving forward.
Key recommendations
Reevaluate job classifications for future filings—H-2A employers should conduct a forward-looking review of upcoming Job Orders to ensure alignment with ONET Job Zone definitions and SVP ranges. Positions historically classified as Level 2 should be reassessed based on actual duties and required preparation time, not tenure assumptions.
Maintain strict adherence to certified Job Orders—For currently approved applications, employers must ensure that all duties, wage rates, and requirements remain consistent with the certified ETA-790 and labor certification. Deviations from certified terms may expose employers to compliance risk under WHD enforcement.
Align future Job Orders with actual work performed—Ensure new filings accurately reflect real operational needs. Misalignment between job descriptions and actual duties remains one of the most common findings in DOL investigations.
Implement structured documentation practices—Maintain clear documentation supporting classification decisions for future filings, including rationale for skill level assignment, training expectations, and operational requirements. This is critical in demonstrating good faith compliance.
Standardize wage and advancement policies—Develop consistent, objective policies for wage adjustments and advancement opportunities. Any differentiation must be based on documented, non-discriminatory factors.
Use flexible compensation structures carefully—H-2A employers may provide compensation above required wage rates, including bonuses or incentives, but these must comply with H-2A regulations and must not be used to offset or circumvent required wages under AEWR, prevailing wage determinations, or Job Order commitments.
Train supervisory staff on compliance expectations—Supervisors should be trained to ensure day-to-day operations align with the certified Job Order and future operational planning aligns with updated classification standards.
Prepare for increased scrutiny in future filings—As DOL aligns enforcement with ONET-based classifications, H-2A employers should expect increased scrutiny in future applications, particularly regarding skill level assignment, wage determinations, and consistency between job duties and classification.
How USA Farm Labor helps clients maintain H-2A compliance
USA Farm Labor is updating Job Order templates, classification guidance, and internal review processes to reflect these changes. While existing certified applications must remain unchanged, we’re working with clients to ensure all future filings are properly structured, defensible, and aligned with current DOL expectations.
