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DOL/ETA

RIN: 1205-AB72

Publication ID: Spring 2014

Title: ●Wage Methodology for the Temporary Non-Agricultural Employment H-2B Program
Abstract: The Immigration and Nationality Act (INA) establishes the H-2B visa classification for a non-agricultural temporary worker "having a residence in a foreign country which he has no intention of abandoning who is coming temporarily to the United States to perform . . . temporary [non-agricultural] service or labor if unemployed persons capable of performing such service or labor cannot be found in this country[.]" 8 U.S.C. 1101(a)(15)(H)(ii)(b). The INA also requires an importing employer (H-2B employer) to petition the Department of Homeland Security (DHS) for classification of the prospective temporary worker as an H-2B nonimmigrant, and DHS must approve such petition before the beneficiary can be considered eligible for an H-2B visa or H-2B status. 8 U.S.C. 1184(c)(1). The INA further requires DHS to consult with "appropriate agencies of the Government" before adjudicating an H-2B petition, and DHS has determined that it must consult with the Department of Labor (DOL) to determine whether U.S. workers capable of performing the temporary services or labor are available and that the foreign worker's employment will not adversely affect the wages or working conditions of similarly employed U.S. workers. 8 CFR 214.2(h)(6)(iii)(A). DHS's regulation requires H-2B employers to obtain certification from DOL that these conditions are met prior to submitting a petition to DHS. Id. As part of DOL's certification, DHS requires DOL to determine the prevailing wage applicable to an application for temporary labor certification. 8 CFR 214.2(h)(6)(iii)(D). DOL has established procedures to certify whether a qualified U.S. worker is available to fill the petitioning H-2B employer's job opportunity and whether foreign worker's employment in the job opportunity will adversely affect the wages or working conditions of similarly employed U.S. workers. See 20 CFR part 655, subpart A. As part of DOL's labor certification process and, pursuant to the DHS regulations, 8 CFR 214.2(h)(6)(iii)(D), DOL sets the wage that employers must offer and pay foreign workers entering the country on an H-2B visa. See 20 CFR 655.10. DOL revised the wage methodology used in the H-2B program in 2011, and jointly with the Department of Homeland Security again in 2013. The later action was an interim final rule (IFR) in response to a court order. However, DOL requested and received comments on all aspects of the 2013 revisions to the H-2B wage methodology in the IFR. DOL has determined that further notice and comment is appropriate on the proper methodology for determining the prevailing wage in the H-2B program, and will consider comments submitted in conjunction with the IFR together with comments submitted on this new proposal in order to issue a final rule.
Agency: Department of Labor(DOL)	Priority: Economically Significant
RIN Status: First time published in the Unified Agenda	Agenda Stage of Rulemaking: Proposed 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 1148(c) 29 USC 49k 8 CFR 214.2(h)(6)(iii)

Legal Deadline: None

Timetable:

Action	Date	FR Cite
NPRM	12/00/2014

Regulatory Flexibility Analysis Required: No	Government Levels Affected: Local
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