Skip to page content
Employment and Training Administration

DOL/ETA

RIN: 1205-AB61

Publication ID: Fall 2010

Title: Wage Methodology for the Temporary Non-Agricultural Employment H-2B program

Abstract: The Immigration and Nationality Act, as amended, requires the Department of Homeland Security, prior to the approval of H-2B visa petitions consult with other agencies. DHS' regulation at 8 CFR 214.2(h)(6) requires that an intending employer first apply for a temporary labor certification from the Department of Labor. Specifically, DOL certifies that there is not sufficient U.S. worker(s) able, available, willing and qualified at the time of an application for a visa, and that the employment of the alien will not adversely affect the wages and working conditions of similarly employed U.S. workers. In order to ensure that there is no adverse effect, the Department requires employers to pay the prevailing wage to H-2B workers and U.S. workers hired in response to the required recruitment. The prevailing wage calculation methodology under the current H-2B regulation became the subject of litigation. On August 30, 2010, the U.S. District Court in the Eastern District of Pennsylvania in Comité de Apoyo a los Trabajadores Agricolas (CATA) v. Hilda Solis, et al., Civil No. 2:09-cv-240-LP, 2010 WL 3431761 (E.D. Pa.), ordered the Department to promulgate new rules concerning the calculation of the prevailing wage rate in the H-2B program that are in compliance with the Administrative Procedure Act no later than 120 days from the date of this order. The Department is proposing to establish that the prevailing wage be the highest of the following: wages established under an agreed-upon collective bargaining agreement; a wage rate established under the Davis Bacon Act or Service Contract Act for that occupation in the area of intended employment; and the arithmetic mean wage rate established by the Occupational Employment Statistics survey for that occupation in the area of intended employment.

Agency: Department of Labor(DOL)

Priority: Economically Significant

RIN Status: First time published in the Unified Agenda

Agenda Stage of Rulemaking: Final Rule Stage

Major: Yes

Unfunded Mandates: No

CFR Citation: 20 CFR 655.10

Legal Authority: 8 USC 1101(a)(15)(H)(ii)(B); 8 USC 1184(c)

Legal Deadline:

Action

Source

Description

Date

Final

Judicial

 

12/28/2010

Overall Description of Deadline: The U.S. District Court in the Eastern District of Pennsylvania in Comite´ de Apoyo a los Trabajadores Agricolas (CATA) v. Hilda Solis, et al., Civil No. 2:09–cv–240–LP, 2010 WL 3431761 (E.D. Pa.) ordered the Department to promulgate a new rule on the calculation of the prevailing wage no later than December 28, 2010.

Timetable:

Action

Date

FR Cite

NPRM

10/05/2010

75 FR 61578

NPRM Extension of Comment Period

11/03/2010

75 FR 67662

NPRM Comment Period End

11/04/2010

 

NPRM Extension of Comment Period End

11/12/2010

 

Final Rule

01/00/2011

 

Regulatory Flexibility Analysis Required: No

Government Levels Affected: State

Small Entities Affected: Businesses

Federalism: No

Included in the Regulatory Plan: No

RIN Data Printed in the FR: No

Agency Contact:
Dr. William L. Carlson
Administrator, Office of Foreign Labor Certification
Department of Labor
Employment and Training Administration
FP Building, Room C-4312, 200 Constitution Avenue NW.,
Washington, DC 20210
Phone:202 693-3010
Email: carlson.william@dol.gov