View Rule

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 employers must first apply for a temporary labor certification from the Department. Specifically, the Department must certify that there are not sufficient U.S. workers able, available, willing, and qualified to perform the temporary services or labor, 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 similarly employed. 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.