The Department of Homeland Security and the Department of Labor have issued a joint interim final rule that establishes a new methodology for calculating prevailing wages under the H-2B low-skilled, nonagricultural guestworker program. This is in response to a March 21 district court decision, in Comité de Apoyo a los Trabajadores Agricolas v. Solis, vacating a portion of the DOL 2008 H-2B Wage Rule (see Federal Court Vacates 2008 H-2B Wage Rule).

The interim rule also responds to another court’s ruling that DOL does not have any authority over the H-2B program. The rule clarifies that DHS is the Executive Branch department charged with making determinations regarding eligibility for H-2B classification and that it consults with DOL about matters with which DOL has expertise, such as the methodology for setting the H-2B prevailing wage.

The agencies stated, “Notwithstanding the Eleventh Circuit’s decision in Bayou, or the Departments’ joint issuance of this interim rule, DOL and DHS continue to maintain, as the Louisiana Forestry Association court held, that DOL does have independent legislative rulemaking authority for the H-2B program…. However, due to these inconsistent court rulings on DOL’s authority to issue independent legislative rules, DOL and DHS are issuing this joint regulation revising the prevailing wage methodology in the H-2B program in order to respond to the court order in CATA v. Solis, and also to dispel questions regarding the respective roles of the two agencies and the validity of DOL’s regulations as an appropriate way to implement the consultation specified in section 214(c)(1) of the INA.”

Under the interim rule, DOL will not use the four-level approach, which was vacated by the court, in its prevailing wage methodology.  The agencies stated, “The prevailing wage will no longer be the mean of the particular wage level, but will be the overall mean of all persons in the occupation in question.”

Key features of the rule:

(i) DOL will use either the Occupational Employment Statistics (OES) wage survey, collective bargaining agreements, the Davis-Bacon Act, the Service Contract Act, or employer-provided surveys, depending on the circumstances, to determine H-2B prevailing wages;
(ii) The prevailing wage will be based on the arithmetic mean wage listed in the OES survey for all persons in the occupation in question;
(iii) DOL will use the prevailing wage set by an applicable collective bargaining agreement where that agreement was reached after arms’ length negotiations between the union and the employer;
(iv) The interim rule permits employers to use the Davis Bacon Act (DBA) or Service Contract Act (SCA) prevailing wage rate, if applicable, and an employer may offer a higher DBA or SCA rate if it chooses to do so; and
(v) Employers may present their own wage surveys, as in the 2008 wage rule, if they provide specific information about the survey methodology so DOL can determine the data accuracy and validity of the methodology and the data are collected within 24 months of the date of submission.

With the publication of the interim rule, DOL has resumed issuing prevailing wage determinations, and USCIS has also resumed adjudicating H-2B visa petitions.

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.