Important Announcement Regarding the H-2B Program
The 2016 Department of Labor Appropriations Act (Division H, Title I of Public Law 114-113) (2016 DOL Appropriations Act), which was enacted on December 18, 2015, contained several provisions requiring non-substantive modifications to (1) the Form ETA-9165, Employer-Provided Survey Attestations to Accompany H-2B Prevailing Wage Determination Request Based on a Non-OES Survey and (2) Appendix B of the Form ETA-9142B, H-2B Application for Temporary Employment Certification. In order to comply with the 2016 DOL Appropriations Act, the Office of Foreign Labor Certification (OFLC) submitted these non-substantive modifications to the Office of Management and Budget (OMB) for review and approval. The OMB has now approved the non-substantive modifications. Therefore, the OFLC Certifying Officers (COs) may issue H-2B prevailing wage determinations based on the submission of a private survey, and may now certify H-2B applications for temporary labor certification, so long as all applicable program requirements are met.
Employers Requests for Prevailing Wage Determination Based on Survey
- Employer requests for a prevailing wage determination based on a private wage survey submitted on or after December 19, 2015, must be accompanied by the revised Form ETA-9165. The CO will issue a Request for Information requiring the employer submit the revised Form ETA-9165 for any survey-based requests for a prevailing wage determination submitted without the revised Form ETA-9165.
To obtain a copy of the Emergency Guidance (updated January 5) reflecting these changes, please click here.
File a Prevailing Wage Application via FLAG System
The Immigration and Nationality Act (INA) requires that the hiring of a foreign worker will not adversely affect the wages and working conditions of U.S. workers comparably employed. To comply with the statute, the Department's regulations require that the wages offered to a foreign worker must be the prevailing wage rate for the occupational classification in the area of employment.
The prevailing wage rate is defined as the average wage paid to similarly employed workers in a specific occupation in the area of intended employment. Effective January 4, 2010, employers can obtain this wage rate by submitting a request to the National Prevailing Wage Center (NPWC), or by accessing other legitimate sources of information such as the Online Wage Library, available for use in some programs.
The requirement to pay prevailing wages as a minimum is true of most employment based visa programs involving the Department of Labor. In addition, the H-1B, H-1B1, and E-3 programs require the employer to pay the prevailing wage or the actual wage paid by the employer to workers with similar skills and qualifications, whichever is higher.
The Department of Labor, Bureau of Labor Statistics (BLS) has provided wage data collected under the Occupational Employment Statistics (OES) program for use in the Foreign Labor Certification process since 1998. The wage data is available on the Foreign Labor Certification Data Center Online Wage Library (OWL), found at the following website: http://www.flcdatacenter.com.
Since September 1999, the Standard Occupational Classification (SOC) has been used by the OES program to classify occupational wage information. The SOC provides a common language for categorizing occupations. It also serves as the framework for information being gathered through the Department of Labor's Occupational Information Network (O*NET). The O*NET provides the general public information on skills, abilities, knowledge, tasks, work activities, and the specific vocational preparation levels associated with occupations. O*NET information can be found at https://online.onetcenter.org/. Wage data from the OES survey and occupational information in O*NET are both classified by the SOC, reducing the need to use crosswalks to connect wages to occupational requirements.
The prevailing wage information provided on this page pertains to the Nonagricultural Immigration Programs (PERM, H-2B, H-1B, H-1B1, H-1C and E-3). For information on the Agricultural Immigration Program (H-2A), click here.
The NPWC uses the Prevailing Wage Determination Policy Guidance in issuing wage determinations for the Nonagricultural Immigration Programs. The Department updated the guidance in November 2009 following the publication of the H-2B regulation and the corresponding changes to PERM, H-1B, H-1B1, H-1C and E-3 regulations that affected the prevailing wage determination process. To read the updated Prevailing Wage guidance, please click here.
To request a prevailing wage determination (PWD) for a Nonagricultural Immigration Program (PERM, H-1B, H-1B1, H-2B, and E-3) employers must complete Form ETA-9141 and submit it to the National Prevailing Wage Center. Electronic filing using the FLAG System is strongly recommended.
For the H-1B, H-1B1, and E-3 programs, employers have the option of using one of three wage sources to obtain the prevailing wage: (1) a PWD obtained from the NPWC; (2) a survey conducted by an independent authoritative source; or (3) another legitimate source of wage information. By obtaining a PWD from the NPWC, H-1B, H-1B1, and E-3 employers are given "safe-harbor status," meaning that if the employer's wage compliance is investigated for any reason, the Wage and Hour Division of the Department of Labor will not challenge the validity of the prevailing wage as long as it was applied properly (i.e., correct geographic area, occupation, and skill level).
Regulations and FAQs
- H-2B Wage Final Rule 2015
- 20 CFR 655 Subpart A (H-2B program)
- 20 CFR 656 Subpart D (PERM, H-1B, H-1B1, and E-3 programs)
- Prevailing Wage Determinations (2009 Federal Register Notice)
- Prevailing Wage FAQs
- Policy Guidance
- FLAG System
- ETA 9141 Application for Prevailing Wage Determination
- ETA 9141 General Instructions
- H-2B Form ETA-9165 - 2016 DOL Appropriations Act
- H-2B Form ETA-9165 Instructions - 2016 DOL Appropriations Act
- Online Wage Library
- O*NET – Online Standard Occupational Classification (SOC)
- Service Contract Act (SCA) and Davis-Bacon Act (DBA) Wage Determinations
U.S. Department of Labor
Employment and Training Administration
Office of Foreign Labor Certification
National Prevailing Wage Center
200 Constitution Ave NW
Washington, DC 20210
Application specific questions: FLC.PWD@dol.gov
iCERT Portal System technical issues: email@example.com