On March 28, 2013, DOL suspended issuance of H-2B Prevailing Wage Determinations due to the Court’s decision on the 2008 wage rule.


Further, effective March 22, 2013 U.S. Citizenship and Immigration Services (USCIS) temporarily suspended adjudication of most Form I-129 H-2B petitions for temporary non-agricultural workerswhile the government considers appropriate action in response to the Court’s decision on the wage rule.


In a four-year battle over the Department of Labor’s rule regarding the methodology for setting H-2B prevailing wage rates, a federal district court has vacated the 2008 H-2B Wage Rule, granting permanent injunctive relief and remanding the case to the DOL.  The court gave the DOL 30 days to comply.  Comite de Apoyo a los Trabajadores Agricolas v. Solis, No. 09-240 (E.D. Penn. Mar. 21, 2013).  The court answered “yes” to the question: “Whether the DOL’s continued use of the 2008 Wage Rule—which has been found procedurally invalid by this Court and substantively invalid by the DOL—justifies vacating the Rule and barring the Rule’s continued use.”

Before requesting H-2B non-agricultural temporary worker classification from the U.S. Citizenship and Immigration Services (USCIS), the employer must apply for and receive a temporary labor certification from DOL that, among other things, certifies that the H-2B workers would be paid at least the prevailing wage assessed by DOL. Over the past three decades, the DOL has periodically changed its methodology for calculating prevailing wages, without notice and comment, and often without explanation. The 2008 Wage Rule introduced the “arithmetic mean.” It states: “the prevailing wage for labor certification purposes shall be the arithmetic mean . . . of the wages of workers similarly employed at the skill level in the area of intended employment.”  The DOL divides each unskilled, H-2B occupation into four separate skill levels and calculates a prevailing wage for each level.

The 2008 H-2B wage methodology rule was promulgated without seeking public comment during the rulemaking process.  A federal district court, on August 30, 2010, ruled the 2008 Rule violated the Administrative Procedure Act (APA) and ordered the DOL to promulgate new, APA-compliant rules for calculating the prevailing wage rates.  Even though DOL published a new final H-2B Wage Rule on January 19, 2011, its implementation has been held up due to delays by Congressional “appropriations concerns” denying DOL funding.

The court found that H-2B labor certifications issued under the 2008 Wage Rule exceeded the authority delegated to the DOL.  The Rule “…artificially lower wages to a point that they no longer represent market-based wages for the occupation” and “have a depressive effect on the wages of United States workers,” according to the court.  Consequently, the Court concluded that labor certifications issued under the 2008 Wage Rule fall “directly outside the narrow range of circumstances under which the DOL is authorized to issue labor certifications and exceeds the bounds of the DOL’s delegated authority under Section 706(2)(C) of the APA.”

For more information on H-2B visas, H-2B labor certification applications, DOL H-2B audits or investigations, please contact your Jackson Lewis attorney or any member of the Jackson Lewis Immigration Practice.