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DOL/ETA RIN: 1205-AB61 Publication ID: Spring 2011 
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 to 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 January 18, 2011. On January 19, 2011, DOL issued a Final Rule with request for comment, which established the prevailing wage as 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: Previously published in the Unified Agenda Agenda Stage of Rulemaking: Proposed Rule Stage 
Major: Yes  Unfunded Mandates: No 
CFR Citation: 8 CFR 214.2(h)(6)    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    01/18/2011 

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 January 18, 2011.

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  01/19/2011  76 FR 3452   
NPRM  06/00/2011    
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:
William L. Carlson Ph.D.
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