What H-2A Wage Do I Pay? AEWR, Job Duties, and the 2026 Back-Pay Window

The call comes every fall. A rancher wants one H-2A worker for the winter: feeding cattle, calving in the spring, clearing snow, keeping the feed wagon running. Then comes the question that sets the budget: what do I have to pay him? And close behind it, a second question that did not exist a year ago: I got a notice from the Department of Labor about back pay. Do I owe something?

Here are the short answers, as of October 6, 2026. For ordinary farm and ranch work in Montana, the H-2A wage floor for the 2026–27 season is $11.60 an hour for an entry-level H-2A worker or $16.76 for an experienced one, and $13.46 or $18.62 for a U.S. worker doing the same job (DOL’s 2026–27 rate table, in effect in Montana since August 17, 2026). Which of those numbers applies depends on three things: what the worker will actually do, what experience the job order asks for, and whether the worker is on an H-2A visa. And no, you do not owe back pay today. But a federal court held the rule behind these rates unlawful on August 26, 2026, and DOL has told employers they may later have to pay the difference, for work done since September 2, 2026, once lawful rates exist. On October 2, 2026, the court set a deadline: DOL must issue a new interim rule by December 30, 2026, and the current rule is vacated that same day. This page explains each piece in the order an employer needs it.

How is the H-2A wage set?

An H-2A employer must offer and pay the highest of several rates: the Adverse Effect Wage Rate (AEWR) for the job and state, any prevailing wage DOL has published for that crop or activity, a union rate if there is one, the federal minimum wage, the state minimum wage, and any higher rate the employer chooses to offer (20 CFR 655.120(a)). In practice the AEWR is almost always the highest, so it is the number that sets the budget.

The AEWR is a wage floor DOL publishes for each state. Its purpose comes from the statute: DOL may certify an H-2A job only if hiring foreign workers will not “adversely affect the wages and working conditions of workers in the United States similarly employed” (8 U.S.C. § 1188(a)(1)). For decades DOL set one AEWR per state from a U.S. Department of Agriculture farm-wage survey. That changed on October 2, 2025, when DOL issued an interim final rule that switched to a different wage survey and built in three new features: two skill levels, a lower rate for H-2A workers to account for free housing, and a rule that assigns the whole job to whatever occupation fills most of the workdays (90 Fed. Reg. 47914). DOL said plainly what the package would do: “the overall impact of this new methodology will be a reduction in the AEWRs” (90 Fed. Reg. at 47928).

The minimum wage can still win. Colorado’s 2026 minimum wage is $15.16 an hour (Colorado PAY CALC Order, 2026), which is higher than Colorado’s entry-level H-2A rate for farm and ranch work ($14.51). An entry-level H-2A worker in Colorado must therefore be paid at least $15.16. In Montana the state minimum is $10.85 for 2026 (Montana Department of Labor and Industry), below every Montana AEWR shown on this page, so the AEWR controls. State minimum wages reset on January 1, and Montana announces its 2027 figure by September 30 each year; a contract that runs into 2027 must pay the 2027 state minimum if it is higher.

What are the 2026–27 H-2A wage rates in Montana and nearby states?

DOL published the current rates on August 3, 2026 (91 Fed. Reg. 48946). They took effect that day in most states and on August 17, 2026 for the states and entities covered by a 2024 court order in Kansas v. U.S. Department of Labor. DOL’s AEWR page lists Montana, North Dakota and Idaho among those states. The rates below are for DOL’s standard farm and ranch group, which covers most H-2A jobs. They are hourly, as of September 29, 2026.

Source: DOL-OFLC 2026–2027 AEWR table, “field and livestock worker” category. *Colorado’s $15.16 state minimum wage is higher and controls. An employer covered by the Kansas order has an August 17 date in any state. These rates will change when DOL publishes new rates under a lawful method; check DOL’s AEWR page on the day you file, and use its “statewide 2026-2027 IFR AEWRs” spreadsheet link: as of September 29, 2026, the table printed on that page still shows the December 2024 rates.

The gap between the two columns for each state is the housing adjustment (for Montana, $1.86 an hour), explained below. A U.S. worker never gets the lower column.

Which job duties change the H-2A wage?

Duties from outside DOL’s standard farm and ranch group can raise the wage, but under the current rule only if they fill more than half of the workdays. The standard group covers five occupations: crop and greenhouse farmworkers, farm and ranch animal workers, agricultural equipment operators, hand packers, and graders and sorters of farm products. Every other occupation has its own rate, and most of them are higher.

Here is what some of the jobs ranchers ask about pay in Montana for the 2026–27 season, per hour, from the same DOL table:

Montana, effective August 17, 2026, as of September 29, 2026. Source: DOL-OFLC 2026–2027 AEWR table.

The rule that decides which row applies is short. As of September 29, 2026, and since October 2, 2025, the occupation and its wage are set by what the worker does on more than 50 percent of the workdays in the contract, counting duties that are “closely and directly related” to that main work, together with the qualifications on the job order (20 CFR 655.120(b)(7)). In our reading, then, a winter ranch hand who feeds cattle most days, clears the snow around the yard, and greases the equipment he runs is paid at the standard farm and ranch rate. A worker who spends most days hauling cattle in a tractor-trailer is a truck driver for wage purposes, even if he also feeds.

If you heard that “even a little truck driving puts the whole job at the trucking rate,” you heard the old rule correctly. From 2023 until October 2025, a job that mixed occupations paid the highest applicable rate for all hours, “regardless of the amount of time” spent on the higher-paid duty (90 Fed. Reg. at 47918, describing the 2023 rule). The current rule replaced that. But the current rule is itself one of the four pieces a federal court has now held unlawful, and the court pointed to a third approach DOL never considered: paying each task’s rate for the hours actually spent on it (Order, Doc. 99, at 21). No one knows yet which approach the replacement rule will take.

Why “keep the trucking under half the days” is the wrong plan

It is tempting to read the 50 percent rule as a design target: write the job so the higher-paid duty stays just under half, and pay the lower rate for all of it. We do not recommend building a job order that way. The court’s reason for holding the rule unlawful was that DOL never addressed this risk or considered paying each task’s rate (Order at 20–21). It quoted DOL’s own earlier warning that a majority-duty test may “encourage employers to intersperse higher-skilled, higher-paying work among many workers so that the higher-paying work is never a duty ‘primarily’ performed by any one employee” (Order at 20, quoting 85 Fed. Reg. 70445, 70461 (Nov. 5, 2020)). A job order engineered to sit at 49 percent is the fact pattern the court described, and it is the job most exposed if the replacement rule pays by the hour for each task.

The approach that holds up under any version of the rule is the plain one: describe the job the worker will really do, and give the specialized work to the people it belongs to. If hauling cattle takes a commercial driver’s license, or a broken tractor needs a mechanic, assign that work to U.S. staff or an outside service, and leave it out of the H-2A job order. For year-round jobs sponsored for a green card, the same winter-duties question arises under different rules; our page on the combined-duties problem in farm worker green cards covers that side.

Entry level or experienced: what decides the skill level?

The qualifications you write into the job order decide it. DOL’s August 2026 notice says, in plain terms, that the entry-level rate applies to jobs whose minimum qualifications fit an entry-level position, with no formal education or specialized training required, and the experienced rate applies to jobs that require the skills or knowledge of an experienced or fully proficient worker, gained through education, training or experience (91 Fed. Reg. at 48947, paraphrased). The regulation ties the wage to “the qualifications on the job order” (20 CFR 655.120(b)(7)).

The difference is large. For a Montana ranch hand it is $5.16 an hour for both a U.S. worker and an H-2A worker. So the experience line on the job order is a wage decision. If the job truly needs someone who has calved heifers before or can run a feed truck on day one, say so and budget for the experienced rate. If you would train the right person, do not add an experience requirement out of habit. Either way, the job order must match the job: DOL can ask you to justify any qualification you list, and a requirement you cannot justify is a problem of its own.

A caution about the future: the court held that the two skill levels, as DOL built them, were arbitrary. Tiers themselves are “not inherently unreasonable,” the court said, but setting the entry level at roughly the 17th percentile when DOL expected 92 percent of H-2A jobs to fall there was (Order at 12–13). Our expectation is that the replacement rule will raise the entry-level rate substantially or drop the split. We would not build a multi-year budget on today’s entry-level figure.

Why do H-2A workers and U.S. workers have different rates?

Because the 2025 rule subtracts the value of the free housing H-2A workers receive. Employers must provide housing at no cost to H-2A workers and to U.S. workers in the same job who cannot reasonably return home each night (20 CFR 655.122(d)(1)). The 2025 rule offsets that by lowering the H-2A worker’s rate by an hourly amount based on statewide average rents for a four-bedroom home, capped at 30 percent of the rate, and applies the reduction to H-2A workers only (20 CFR 655.120(b)(3)). In Montana the reduction is $1.86 an hour. Housing requirements themselves are covered in our pages on the H-2A program and mobile housing for H-2A workers.

The practical point most employers miss is the U.S. worker who does the same work. The regulations call this “corresponding employment”: work by non-H-2A employees of a certified employer in any work in the job order, or any farm work the H-2A workers perform, during the job order period (20 CFR 655.103(b)). If a long-time hand or a family employee feeds cattle alongside the H-2A worker this winter, that person must be paid at least the U.S. rate for that work: in Montana, $13.46 or $18.62 depending on the job order’s skill level. That is also true of the back-pay window below, which covers U.S. workers in corresponding employment as well as H-2A workers.

The court held the housing adjustment arbitrary for three reasons: it applies only to H-2A workers even though some U.S. workers get free housing too; it effectively charges H-2A workers for housing the regulation says must be free; and because it is computed on a 40-hour week but deducted from every hour worked, a worker on a 60-hour week pays more than the housing is worth (Order at 14–16).

What did the court decide on August 26, 2026?

In United Farm Workers v. U.S. Department of Labor, No. 1:25-cv-01614 (E.D. Cal.), the court held the October 2025 rule unlawful but did not throw it out. Its words: “The Court therefore finds the IFR unlawful and remands to DOL to promptly generate a new methodology for calculating AEWRs” (Order, Doc. 99, at 2).

• All four challenged pieces failed. The two skill levels, the housing adjustment, the more-than-half-the-workdays rule, and the choice of the new wage survey without adjusting for its known downward bias were each held arbitrary and capricious (Order at 10–21). Some early news coverage reported that the survey switch survived. It did not survive on the merits. What the court upheld was DOL’s decision to skip public comment for the survey switch alone, because the old survey had been discontinued; for the other three changes, it found no good cause to skip comment (Order at 22–23).
• The rates stay in place for now. Throwing the rule out immediately likely would have left the program with no AEWRs at all, so the court left the current rates in effect while DOL writes a new method (Order at 24–25). On October 2, 2026, it set an end date: the 2025 rule is vacated effective December 30, 2026, the same day DOL must issue a new interim final rule (Order, Doc. 108, at 3).
• DOL must act promptly. The court ordered DOL “to promptly produce a new methodology” and “to promptly publish new AEWRs under that methodology” (Order at 28).
• Back pay is reserved, not decided. The court found it has the power to order back pay for the period after its order but declined to decide whether any is owed, or how much, until new rates exist to compare against (Order at 27–28).

This affects range work differently. The rule the court held unlawful covers non-range occupations. Sheepherding and open-range livestock jobs are paid a monthly rate under separate rules (20 CFR 655.200–655.235) that the ruling does not address.

Do I owe H-2A back wages now?

No, not as of October 6, 2026. DOL’s notice says it directly: “no employer is under an obligation at this time to pay any back wages” (DOL notice, September 2, 2026). What the notice does, because the court ordered it to, is warn employers that they “may” be required to make wage adjustment payments later.

The window. The period that could be subject to an adjustment began on September 2, 2026, the date of the notice, and ends when DOL issues new AEWRs under a new method. It does not reach back to the start of your season or to last year.

Who it covers. Per DOL’s notice: (1) employers whose H-2A certification is still running as of September 2, 2026, including approved extensions; (2) employers with pending applications; and (3) employers who file new applications until DOL publishes the new method. It applies nationwide, not only to the parties in the lawsuit.

Who could be paid, and what. H-2A workers and U.S. workers in corresponding employment who worked during the window, and only if their hourly wage was below the new rate that eventually applies to their job. The amount would be the difference. Nobody can calculate it today, because the new rates do not exist. DOL has said it will contest any back-pay obligation.

Why the exposure runs mainly one way

Every piece the court faulted is a piece that pushed the rate down: the low entry level that DOL expected 92 percent of jobs to fall into, the housing deduction, the majority-duty rule that lets higher-paid work ride at a lower rate, and a wage survey the court found understates farm wages. DOL itself described the rule’s effect as “a reduction in the AEWRs” (90 Fed. Reg. at 47928). Our judgment is that a replacement method consistent with the court’s order is unlikely to produce lower rates for most jobs, especially entry-level H-2A jobs, which have the most room to rise. That makes the window less like uncertainty and more like a potential liability of unknown size that could grow with every payroll until the new rates arrive.

What records should I keep right now?

The one thing DOL’s notice asks employers to do today is keep good contact information for every worker who might later be owed an adjustment. The regulation already requires accurate earnings records, including each worker’s permanent address and, when available, permanent email and phone number (20 CFR 655.122(j)). The notice reminds employers of that duty and names additional items. For every H-2A worker and every U.S. worker in corresponding employment, record:

• full name;
• permanent home address (for an H-2A worker, the address in the home country);
• Social Security number, if one has been issued;
• where available, the I-94 arrival/departure record number, a permanent email address and a phone number;

and make reasonable efforts to keep it current.

Two more records are worth keeping because of how the case may end. First, the U.S. workers. Employers who keep careful files on their H-2A crew often keep thinner ones on local employees doing the same work, and those employees are inside the window too. Second, hours by task. The regulation already requires records of “the nature and amount of the work performed” and hours worked each day. If the replacement rule pays each task’s rate for the hours spent on it, which is the approach the court said DOL should have considered, a daily log showing hours feeding versus hours hauling or repairing is what lets you calculate an adjustment instead of guessing at one.

Why now: any adjustment will be ordered after new rates exist, which may be after the season ends and the crew has gone home. An employer who can reach its workers can pay what is owed and close the matter. An employer who cannot is in a much harder position, simply because the information was not captured while it was easy to capture.

Should I raise wages now to be safe?

That is a business decision, and there are three reasonable positions.

• Pay the current published rate and keep records. This is what the law requires today, and it is the most common choice. Its weakness is that it leaves the whole exposure as a future bill.
• Pay the current rate and set money aside. A reserve can be released if no adjustment is ever ordered; a wage already paid cannot be taken back. This is worth raising with your accountant or lender when you build next season’s budget.
• Pay more than the published rate now. Some employers do this for recruiting and retention reasons of their own. As a hedge against back pay, it has a real cost: if the case ends with no adjustment owed, the extra wages are gone, and a higher rate once promised in a job order must be paid for the rest of that contract (the job order is the work contract; see 20 CFR 655.120(b)(6) and 655.122(l)).

What we do not recommend is delaying a filing to wait for the new rates. The program’s filing windows do not allow it, and when new rates are published during a contract, a higher rate applies from the publication date anyway (20 CFR 655.120(b)(5)).

What happens next, and when?

As of October 6, 2026, the court has set a firm date.

• September 9, 2026: the parties filed a joint status report. According to the court, DOL proposed to write the new method only through a full final rule, which it said would take another nine to twelve months, and said the fact that the 2025 rule had not been vacated was an impediment to issuing a quicker interim rule (Order, Doc. 103, at 1–2).
• September 17, 2026: the court rejected that timeline: “The Department’s proposed timeline does not constitute a prompt addressing of the IFR’s deficiencies” (Doc. 103 at 2). It directed the parties to address how quickly DOL can issue a new interim method, pending a final rule, and whether the 2025 rule should be vacated before or when that interim method issues.
• September 28, 2026: the further joint status report was filed. According to the court, DOL said it would try to finish a new interim rule within about three months of the October 1 conference and might need up to three more months for review, while the farmworker plaintiffs asked for an interim rule within three weeks (Doc. 108 at 2).
• October 1, 2026: the court held the status conference, where DOL said it would try to issue the interim rule within four months (Doc. 108 at 3).
• October 2, 2026: the court ordered DOL to issue a new interim final rule by December 30, 2026, vacated the 2025 rule effective that same day, and ordered joint status reports starting October 22, 2026 and every three weeks after that until the new rule issues (Order, Doc. 108, at 3).

When new rates are published, three things follow. The back-pay window closes. The new rates apply going forward, including mid-contract if they are higher than what your job order guarantees (20 CFR 655.120(b)(5)). And the parties propose a schedule for briefing whether back pay should be awarded and in what amount (Order at 28). DOL may also appeal; as of October 6, 2026, the docket shows no notice of appeal. We will update this page when any of these happens.

When do I have to file for a winter or spring start?

The job order must reach DOL no more than 75 and no fewer than 60 calendar days before the first day you need the worker (20 CFR 655.121(b)). Whether a winter job qualifies as seasonal in the first place is its own question; see our page on H-2A seasonality requirements.

Any job order filed from now until DOL publishes the new method falls inside the back-pay notice. That is not a reason to wait; it is a reason to set up the records above before the worker arrives.

Quick answers

Do I owe H-2A back wages right now? No. As of October 6, 2026, nothing is owed. Whether anything will be owed for work since September 2, 2026 depends on rates DOL has not yet published and on a decision the court has reserved.

Which of my certifications are affected? Any certification still running on September 2, 2026, any application pending then, and any new application filed before DOL publishes the new method.

How much could it be? The difference between what you paid each worker during the window and the new rate for that worker’s job, if the new rate is higher. No honest figure can be given yet.

Does this change what I pay today? No. As of October 6, 2026, the published 2026–27 rates remain the rates you must pay until new ones are published; the court has ordered DOL to issue a new interim rule by December 30, 2026.

Does it affect sheepherders or range workers? No. Range jobs are paid under separate monthly-rate rules the ruling does not address.

The mistake to avoid

The expensive mistake this season is not paying the wrong rate by a few cents. It is writing a job order that describes a different job than the one the worker will do: an experience requirement copied from last year’s form, a truck-driving duty left in “just in case,” or a mechanic’s work quietly assigned to a worker certified as a ranch hand. Each of those changes the rate, and in the back-pay window each one also changes what you may owe later. Describe the job honestly, keep the specialized work with the people who hold the license, and keep the records that let you prove what was done.

Immigration Law of Montana, P.C. files H-2A applications for farms and ranches in Montana, North Dakota and Wyoming, and our overview of immigration options for farmers and ranchers covers the rest of the program. Operations that supply crews to other farms face further rules, covered in our guide to becoming an H-2A labor contractor. If you are planning a job order and want a second look at the duties, the skill level or your records, contact us to arrange a strategy consultation.