Notice & Comment

DHS & DOL Seek Comment On H-2B Interim Employment Wage Methodology, by Shannon Allen

The court, in Comité de Apoyo a los Trabajadores Agricolas v. Solis, “vacated portions of [the Department of Labor’s] (“DOL’s”) current prevailing wage rate regulation . . . .”  In response, the Department of Homeland Security (“DHS”) and the DOL are jointly amending regulations governing certification for the employment of nonimmigrant workers in temporary or seasonal non-agricultural employment.”  The DHS determined that it is essential for DOL to consult DHS to adjudicate H-2B petitions.  The interim final rule“revises how DOL provides the consultation . . . by revising the methodology by which DOL calculates the prevailing wages to be paid to H-2B workers . . . [and this] prevailing wage is then used in petitioning DHS to employ nonimmigrant workers in H-2B status.”

An employer must “pay the H-2B workers . . . a wage that will not adversely affect the wages of U.S. workers similarly employed.”  So, employers must pay the “prevailing wage” in order to fulfill this requirement.  The DOL determines the “prevailing wage” and the DHS and DOL have established provisions governing this process.

The DHS and DOL jointly determined that the new wage methodology is necessary for the H-2B program.   The agencies will use the Occupational Employment Statistics mean to ensure that H-2B workers are paid a wage that meet the new standards of the rule.

The interim final rule is effective April 24, 2013.  Interested parties are invited to submit written comments on or before June 10, 2013.  You may submit comments using Regulatory Information Number (RIN) 1205-AB69, by:

  • Federal e-Rulemaking Portal Follow the Web site instructions for submitting comments.
  • Mail or Hand Delivery/Courier to Michael Jones, Acting Administrator, Office of Policy Development and Research, Employment and Training Administration, U.S. Department of Labor, 200 Constitution Avenue NW., Room N-5641, Washington, DC 20210.

This post was originally published on the legacy ABA Section of Administrative Law and Regulatory Practice Notice and Comment blog, which merged with the Yale Journal on Regulation Notice and Comment blog in 2015.

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