View Rule

View EO 12866 Meetings Printer-Friendly Version     Download RIN Data in XML

DOL/ETA RIN: 1205-AC15 Publication ID: Fall 2023 
Title: ●Employer-Provided Survey Wage Methodology for the Temporary Non-Agricultural Employment H-2B Program 

The Immigration and Nationality Act, as amended, requires the Department of Homeland Security (DHS), prior to the approval of H-2B visa petitions, consult with the Department of Labor (Department). DHS' regulation at 8 CFR 214.2(h)(6) requires that employer must first apply for a temporary labor certification from the Department. Specifically, the Department must certify 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 H-2B workers will not adversely affect the wages and working conditions of similarly employed U.S. workers. To ensure that there is no adverse effect, DOL requires employers to pay the prevailing wage to H-2B workers and U.S. workers hired in response to the required recruitment. Employer-provided surveys are one of the prevailing wage sources under the H-2B regulations and has been the subject of recent litigation. On December 23, 2022, the U.S. District Court for the District of Columbia held the employer-provided survey provision under the Wage Methodology for the Temporary Non-Agricultural Employment H-2B Program (2015 Wage Rule) in, 20 CFR part 655 subpart A did not satisfy the notice and comment requirements under the Administrative Procedure Act (APA). Mary Jane Williams, et al. v. Martin J. Walsh, et al. (Williams), Civil No. 1:21-cv-01150 (RC), 2022 WL 17904227 (D.D.C. December 23, 2022). The Court remanded the rule without vacatur and ordered act[ion] with haste for further consideration consistent with the Court’s opinion. The Department is proposing to issue a notice of proposed rulemaking on the employer-provided survey provision of the 2015 Wage Rule to cure the procedural defect of the 2015 Wage Rule, pursuant to the decision in Williams.

Agency: Department of Labor(DOL)  Priority: Other Significant 
RIN Status: First time published in the Unified Agenda Agenda Stage of Rulemaking: Proposed Rule Stage 
Major: No  Unfunded Mandates: No 
CFR Citation: 8 CFR 212.4(h)(6)    20 CFR 655, subpart A     (To search for a specific CFR, visit the Code of Federal Regulations.)
Legal Authority: 8 U.S.C. 1101(a)(15)(H)(ii)(b)    8 U.S.C. 1103(a)(6)    8 U.S.C. 1184(c)(1)    Pub. L. 117-328, 12/29/22, 136 Stat.4459, Div. H, title I, sec. 110    Pub. L. 118-15, 9/30/23, 137 Stat. 71, Division A, sec. 101(8)   
Legal Deadline:  None
Action Date FR Cite
NPRM  01/00/2024 
Regulatory Flexibility Analysis Required: Yes  Government Levels Affected: State 
Small Entities Affected: Businesses  Federalism: No 
Included in the Regulatory Plan: No 
RIN Data Printed in the FR: Yes 
Agency Contact:
Brian Pasternak
Department of Labor
Employment and Training Administration
200 Constitution Avenue NW, Office of Foreign Labor Certification; Room N-5311, FP Building,
Washington, DC 20210
Phone:202 693-8200