Vol. 80 Wednesday, 

No. 82 April 29, 2015 

Part V 

Department of Homeland Security 

8 CFR Part 214 

Department of Labor 

Employment and Training Administration 

20 CFR Part 655 

Wage Methodology for the Temporary Non-Agricultural Employment H–2B 

Program; Final Rule 

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24146 Federal Register / Vol. 80, No. 82 / Wednesday, April 29, 2015 / Rules and Regulations 

1Under section 1517 of title XV of the Homeland 

Security Act of 2002 (HSA), Pub. L. 107–296, 116 

Stat. 2135, any reference to the Attorney General in 

a provision of the INA describing functions that 

were transferred from the Attorney General or other 

Department of Justice official to DHS by the HSA 

‘‘shall be deemed to refer to the Secretary’’ of 

Homeland Security. See 6 U.S.C. 557 (2003) 

(codifying HSA, title XV, sec. 1517); 6 U.S.C. 542 

note; 8 U.S.C. 1551 note. 

DEPARTMENT OF HOMELAND 

SECURITY 

8 CFR Part 214 

[CIS No. 2536–13] 

RIN 1615–AC02 

DEPARTMENT OF LABOR 

Employment and Training 

Administration 

20 CFR Part 655 

[Docket No. ETA–2013–0003] 

RIN 1205–AB69 

Wage Methodology for the Temporary 

Non-Agricultural Employment H–2B 

Program 

AGENCY: Employment and Training 

Administration, Labor; U.S. Citizenship 

and Immigration Services, Department 

of Homeland Security. 

ACTION: Final rule. 

SUMMARY: The Department of Homeland 

Security (DHS) and the Department of 

Labor (DOL) are issuing final regulations 

governing certification of the 

employment of nonimmigrant workers 

in temporary or seasonal nonagricultural employment. This final rule 

sets forth how DOL provides the 

consultation that DHS has determined is 

necessary to adjudicate H–2B visa 

petitions by setting the methodology by 

which DOL calculates the prevailing 

wages to be paid to H–2B workers and 

U.S. workers recruited in connection 

with applications for temporary labor 

certification. Specifically, for the 

purposes of an H–2B temporary labor 

certification, this final rule establishes 

that, in the absence of a wage set in a 

valid and controlling collective 

bargaining agreement, the prevailing 

wage will be the mean wage for the 

occupation in the pertinent geographic 

area derived from the Bureau of Labor 

Statistics Occupational Employment 

Statistics survey, unless the H–2B 

employer meets the conditions for 

requesting that the prevailing wage be 

based on an employer-provided survey. 

Any such survey submitted must meet 

the new methodological criteria 

established in this final rule in order to 

be used to establish the prevailing wage. 

The final rule does not permit use of the 

wage determinations issued under the 

Service Contract Act or the Davis Bacon 

Act as sources to set the prevailing wage 

in the H–2B temporary labor 

certification context. 

DHS and DOL are issuing this final 

rule together because DHS, as the 

Executive Branch agency charged with 

administering the H–2B program, has 

determined that the most effective 

implementation of the statutory H–2B 

labor protections requires that DHS 

consult with DOL for its advice about 

matters with which DOL has expertise, 

including questions about the 

methodology for setting the prevailing 

wage in the H–2B program. DHS (and 

the former Immigration and 

Naturalization Service, Department of 

Justice, which was charged with 

administration of the H–2B program 

prior to enactment of the Homeland 

Security Act of 2002) has long 

recognized that DOL is the appropriate 

agency with which to consult regarding 

the availability of U.S. workers and for 

assuring that wages and working 

conditions of U.S. workers are not 

adversely affected by the use of H–2B 

workers. This rule also adopts, without 

change, certain revisions made to DHS’s 

H–2B regulations, to clarify that DHS is 

the Executive Branch agency charged 

with making determinations regarding 

eligibility for H–2B classifications, after 

consulting with DOL for its advice about 

matters with which DOL has expertise, 

including questions related to the 

methodology for setting the prevailing 

wage in the H–2B program. Finally, 

DHS and DOL are issuing, 

simultaneously with this rule, a 

companion H–2B rule governing the 

certification of the employment of 

nonimmigrant workers in temporary or 

seasonal non-agricultural employment 

and the enforcement of the obligations 

applicable to employers of such 

nonimmigrant workers. 

DATES: This final rule is effective April 

29, 2015. 

FOR FURTHER INFORMATION CONTACT:

For further information on 8 CFR part 

214, contact Steven W. Viger, 

Adjudications Officer (Policy), Office of 

Policy and Strategy, U.S. Citizenship 

and Immigration Services, Department 

of Homeland Security, 20 Massachusetts 

NW., Washington, DC 20529–2060; 

Telephone (202) 272–1470 (this is not a 

toll-free number). 

For further information on 20 CFR 

part 655, subpart A, contact William W. 

Thompson, II, Acting Administrator, 

Office of Foreign Labor Certification, 

Employment and Training 

Administration, U.S. Department of 

Labor, 200 Constitution Avenue NW., 

Room C–4312, Washington, DC 20210; 

Telephone (202) 693–3010 (this is not a 

toll-free number). Individuals with 

hearing or speech impairments may 

access the telephone number above via 

TTY by calling the toll-free Federal 

Information Relay Service at 1–800– 

877–8339. 

SUPPLEMENTARY INFORMATION: 

I. Background 

A. The Statutory and Regulatory 

Framework 

The Immigration and Nationality Act 

(INA) establishes the H–2B visa 

classification for a non-agricultural 

temporary worker ‘‘having a residence 

in a foreign country which he has no 

intention of abandoning who is coming 

temporarily to the United States to 

perform . . . temporary [nonagricultural] service or labor if 

unemployed persons capable of 

performing such service or labor cannot 

be found in this country.’’ 8 U.S.C. 

1101(a)(15)(H)(ii)(b), INA section 

101(a)(15)(H)(ii)(b). Section 214(c)(1) of 

the INA, 8 U.S.C. 1184(c)(1), requires an 

importing employer (H–2B employer) to 

petition the Department of Homeland 

Security (DHS) for classification of the 

prospective temporary worker as an H– 

2B nonimmigrant.1 DHS must approve 

this petition before the beneficiary can 

be considered eligible for an H–2B visa 

or H–2B status. Finally, the INA 

requires that ‘‘[t]he question of 

importing any alien as [an H–2B] 

nonimmigrant . . . in any specific case 

or specific cases shall be determined by 

[DHS], after consultation with 

appropriate agencies of the Government, 

upon petition of the importing 

employer.’’ 8 U.S.C. 1184(c)(1), INA 

section 214(c)(1). 

Pursuant to the above-referenced 

authorities, DHS has promulgated 

regulations implementing the H–2B 

program. See, e.g., 73 FR 78104 (Dec. 19, 

2008). These regulations prescribe the 

conditions under which DHS may grant 

an employer’s petition to classify an 

alien as an H–2B worker. See 8 CFR 

214.2(h)(6). U.S. Citizenship and 

Immigration Services (USCIS) is the 

component agency within DHS that 

adjudicates H–2B petitions. Id. 

USCIS examines H–2B petitions for 

compliance with a range of statutory 

and regulatory requirements. For 

instance, USCIS will examine each 

petition to ensure, inter alia, (1) that the 

job opportunity in the employer’s 

petition is of a temporary nature, 8 CFR 

214.2(h)(2)(D), (6)(ii) and (6)(vi)(D); (2) 

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Federal Register / Vol. 80, No. 82 / Wednesday, April 29, 2015 / Rules and Regulations 24147 

2 DHS also publishes annually a list of countries 

whose nationals are eligible to participate in the H– 

2B visa program in the coming year. See 8 CFR 

214.2(h)(6)(i)(E); see also, e.g., 79 FR 3214 (Jan. 17, 

2014) notice of eligible country list). As part of its 

adjudication of H–2B petitions, USCIS must 

determine whether the alien beneficiary is a 

national of a country on the list; if not, USCIS must 

determine whether it is in the U.S. interest for that 

alien to be a beneficiary of such petition. See 8 CFR 

214.2(h)(6)(i)(E). 

3The regulation establishes a different procedure 

for the Territory of Guam, under which a 

petitioning employer must apply for a temporary 

labor certification with the Governor of Guam. 8 

CFR 214.2(h)(6)(iii)(A). 

4 DHS has required a temporary labor certification 

as a condition precedent to adjudication of an H– 

2B petition for temporary employment in the 

United States since 2008. 73 FR 78103. DOL, 

however, has promulgated regulations governing its 

adjudication of employer applications for 

temporary labor certification since 1968, when DOL 

promulgated regulations under which it would 

review, among other things, ‘‘the employer’s 

attempts to recruit workers and the appropriateness 

of the wages and working conditions offered.’’ See 

33 FR 7570 (May 22, 1968) (DOL final rule on 

certification of temporary foreign labor for 

industries other than agriculture and logging). Until 

1986, there was a single H–2 temporary worker 

classification applicable to both temporary 

agricultural and non-agricultural workers. In 1986, 

Congress revised the INA to create two separate 

programs for agricultural (H–2A) and nonagricultural (H–2B) workers. See 8 U.S.C. 

1101(a)(15)(H)(ii), INA 101(a)(15)(H)(ii), 66 Stat. 163 

(June 27, 1952); Immigration Reform and Control 

Act of 1986, Public Law 99–603, Sec. 301, 100 Stat. 

3359. Under the 1968 final rule, DOL considered, 

‘‘such matter[s] as the employer’s attempts to 

recruit workers and the appropriateness of the 

wages and working conditions offered.’’ 33 FR at 

7571. 

that the beneficiary alien meets the 

educational, training, experience, or 

other requirements, if any, attendant to 

the job opportunity described in the 

petition, 8 CFR 214.2(h)(6)(vi)(C); (3) 

that there are sufficiently available H– 

2B visas in light of the applicable 

numerical limitation for H–2B visas, 8 

CFR 214.2(h)(8)(ii)(A); and (4) that the 

application is submitted consistent with 

strict requirements ensuring the 

integrity of the H–2B system, 8 CFR 

214.2(h)(6)(i)(B), (6)(i)(F).2

DHS has implemented the statutory 

protections attendant to the H–2B 

program by regulation. See 8 CFR 

214.2(h)(6)(iii), (iv), and (v). In 

accordance with the statutory mandate 

at 8 U.S.C. 1184(c)(1), INA section 

214(c)(1), that DHS consult with 

‘‘appropriate agencies of the 

government’’ to determine eligibility for 

H–2B nonimmigrant status, DHS (and 

the former Immigration and 

Naturalization Service) has long 

recognized that the most effective 

administration of the H–2B program 

requires consultation with the 

Department of Labor (DOL) to advise 

whether U.S. workers capable of 

performing the temporary services or 

labor are available. See, e.g., Temporary 

Alien Workers Seeking Classification 

Under the Immigration and Nationality 

Act, 55 FR 2606, 2617 (Jan. 26, 1990) 

(‘‘The Service must seek advice from the 

Department of Labor under the H–2B 

classification because the statute 

requires a showing that unemployed 

U.S. workers are not available to 

perform the services before a petition 

can be approved. The Department of 

Labor is the appropriate agency of the 

Government to make such a labor 

market finding. The Service supports 

the process which the Department of 

Labor uses for testing the labor market 

and assuring that wages and working 

conditions of U.S. workers will not be 

adversely affected by employment of 

alien workers.’’). 

Accordingly, DHS regulations require 

that an H–2B petition for temporary 

employment in the United States must 

be accompanied by an approved 

temporary labor certification from DOL. 

8 CFR 214.2(h)(6)(iii)(A) and (iv)(A).3

The temporary labor certification 

demonstrates that DOL has evaluated, 

and is providing advice to DHS with 

respect to, whether a qualified U.S. 

worker is available to fill the petitioning 

H–2B employer’s job opportunity and 

whether a foreign worker’s employment 

in the job opportunity will adversely 

affect the wages or working conditions 

of similarly employed U.S. workers. See 

8 CFR 214.2(h)(6)(iii)(A) and (D). In 

addition, as part of DOL’s certification, 

DHS regulations require DOL to 

‘‘determine the prevailing wage 

applicable to an application for 

temporary labor certification in 

accordance with the Secretary of Labor’s 

regulation at 20 CFR 655.10.’’ 8 CFR 

214.2(h)(6)(iii)(D). 

DHS relies on DOL’s advice in this 

area, as DOL is the appropriate 

government agency with expertise in 

labor questions and historic and specific 

expertise in addressing labor protection 

questions related to the H–2B program. 

This advice helps DHS fulfill its 

statutory duty to determine, prior to 

approving an H–2B petition, that 

unemployed U.S. workers capable of 

performing the relevant service or labor 

cannot be found in the United States. 8 

U.S.C. 1101(a)(15)(H)(ii)(b), INA section 

101(a)(15)(H)(ii)(b); 8 U.S.C. 1184(c)(1), 

INA section 214(c)(1). DHS has therefore 

made DOL’s approval of a temporary 

labor certification a condition precedent 

to the completion of the H–2B petition. 

8 CFR 214.2(h)(6)(iii) and (vi). 

Following receipt of an approved DOL 

temporary labor certification and other 

required evidence, USCIS may 

adjudicate an employer’s complete H– 

2B petition. Id. 

Consistent with the above-referenced 

authorities, since at least 1968,4 DOL 

has established regulatory procedures to 

certify whether a qualified U.S. worker 

is available to fill the job opportunity 

described in the employer’s petition for 

a temporary nonagricultural worker, and 

whether a foreign worker’s employment 

in the job opportunity will adversely 

affect the wages or working conditions 

of similarly employed U.S. workers. See 

20 CFR part 655, subpart A. As part of 

DOL’s temporary labor certification 

process, and as required by DHS 

regulations, 8 CFR 214.2(h)(6)(iii)(D) 

and (iv), DOL sets the wage that 

employers must offer and pay foreign 

workers admitted to the United States in 

H–2B nonimmigrant status. See 20 CFR 

655.10. This final rule sets forth DOL’s 

methodology for setting the wage, 

consistent with the INA and existing 

DHS regulations. 

As discussed above, DHS has 

determined that the most effective 

implementation of the statutory labor 

protections in the H–2B program 

requires that DHS consult with DOL for 

its advice about matters with which 

DOL has unique expertise, particularly 

questions about the methodology for 

setting the prevailing wage in the H–2B 

program. The most transparent and 

effective method for DOL to provide this 

consultation is by setting forth in 

regulations the standards it will use to 

provide that advice, as required by 

existing DHS regulations. DOL’s rules 

set the standards by which employers 

demonstrate to DOL that they have 

tested the labor market and found 

insufficient numbers of qualified and 

available U.S. workers, and set the 

standards by which employers 

demonstrate to DOL that the offered 

employment does not adversely affect 

U.S. workers. By setting forth this 

structure in regulations, DHS and DOL 

ensure the provision of this advice by 

DOL is consistent, transparent, and 

provided in the form that is most useful 

to DHS. 

As discussed in greater detail below, 

DOL’s authority to issue its own 

legislative rules to carry out its duties 

under the INA has been challenged in 

litigation. On April 1, 2013, the U.S. 

Court of Appeals for the Eleventh 

Circuit upheld a district court decision 

that granted a preliminary injunction 

against enforcement of the 2012 

comprehensive H–2B rule (2012 H–2B 

rule) on the ground that the employers 

were likely to prevail on their allegation 

that DOL lacks H–2B rulemaking 

authority. Bayou Lawn & Landscape 

Servs. v. Sec’y of Labor, 713 F.3d 1080 

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24148 Federal Register / Vol. 80, No. 82 / Wednesday, April 29, 2015 / Rules and Regulations 

5Before 2008, DOL set the prevailing wage in the 

H–2B program through sub-regulatory guidance. 

See, e.g., General Administration Letter (GAL) 10– 

84, ‘‘Procedures for Temporary Labor Certifications 

in Non Agricultural Occupations’’ (April 23, 1984); 

GAL 4–95, ‘‘Interim Prevailing Wage Policy for 

Nonagricultural Immigration Programs’’ (May 18, 

1995), Attachment I, available at http://

wdr.doleta.gov/directives/attach/GAL4-95_

attach.pdf; GAL 2–98, ‘‘Prevailing Wage Policy for 

Nonagricultural Immigration Programs’’ (published 

Oct. 31, 1997; effective Jan. 1, 1998) available at 

http://wdr.doleta.gov/directives/attach/GAL2-98_

attach.pdf. 

6The 2008 rule required that when the prevailing 

wage was based on the OES, it should reflect skill 

levels. The agency’s implementing guidance 

required that the prevailing wage contain four wage 

tiers based on skill level. As a result, we refer 

throughout this rule to the 2008 rule’s requirement 

of four wage tiers. 

Because the OES survey captures no information 

about actual skills or responsibilities of the workers 

whose wages are being reported, the four-tiered 

wage structure, adapted from the statutorily 

required four tiers applicable to the H–1B visa 

program under section 212(p)(4) of the INA, 8 

U.S.C. 1182(p), was derived by mathematical 

formula as follows to reflect ‘‘entry level,’’ 

‘‘qualified,’’ ‘‘experienced,’’ and ‘‘fully competent’’ 

workers: Level 1 is the mean of the lowest-paid 1⁄3, 

or approximately the 17th percentile; Level 2 is 

approximately the 34th percentile; Level 3 is 

approximately the 50th percentile; and Level 4 is 

the mean of the highest-paid 2⁄3, or approximately 

the 67th percentile. 

7See supra n.5. 

8 DOL found that in 2010, almost 75 percent of 

H–2B jobs were certified at a Level 1 wage (the 

mean of the lowest one-third of all reported wages), 

and over a several year period, approximately 96 

percent of the prevailing wages issued were lower 

than the mean of the OES wage rates for the same 

occupation. 76 FR at 3463. DOL determined that in 

the low-skilled occupations in the H–2B program, 

the mean ‘‘represents the wage that the average 

employer is willing to pay for unskilled workers to 

perform that job.’’ Id. Therefore, DOL concluded 

that the use of skill levels adversely affected U.S. 

workers because it ‘‘artificially lowers [wages] to a 

point that [they] no longer represent[ ] a marketbased wage for that occupation.’’ Id. The 

application of the four levels set a wage ‘‘below 

what the average similarly employed worker is 

paid.’’ Id. DOL concluded that ‘‘the net result is an 

adverse effect on the [U.S.] worker’s income.’’ 76 FR 

at 3463. 

(11th Cir. 2013). On remand, the district 

court issued an order vacating the 2012 

H–2B rule, and permanently enjoined 

DOL from enforcing the rule on the 

ground that DOL lacks rulemaking 

authority in the H–2B program. Bayou 

Lawn & Landscape Servs., No. 3:12–cv– 

183 (N.D. Fla. Dec. 18, 2014) (Bayou II). 

The Bayou II decision is currently on 

appeal to the 11th Circuit. However, on 

February 5, 2014, the U.S. Court of 

Appeals for the Third Circuit held that 

‘‘DOL has authority to promulgate rules 

concerning the temporary labor 

certification process in the context of 

the H 2B program, and that the 2011 

Wage Rule was validly promulgated 

pursuant to that authority.’’ La. Forestry 

Ass’n v. Perez, 745 F.3d 653, 669 (3d 

Cir. 2014). 

In order to ensure that there can be no 

question about the authority for and 

validity of the regulations in this area, 

DHS and DOL (the Departments), 

together, are issuing this final rule. By 

proceeding together, the Departments 

affirm that this rule is fully consistent 

with the INA and existing DHS 

regulations implementing the H–2B 

program and is vital to DHS’s ability to 

faithfully implement the statutory labor 

protections attendant to the program. 

See 8 U.S.C. 1101(A)(15)(H)(ii)(b), INA 

section 101(a)(15)(H)(ii)(b); 8 U.S.C. 

1103(a)(6), INA section 103(a)(6); 8 

U.S.C. 1184(c)(1), INA section 214(c)(1); 

8 CFR 214.2(h)(6)(iv). This final rule 

implements a key component of DHS’s 

determination that it must consult with 

DOL on the labor market questions 

relevant to its adjudication of H–2B 

petitions. This final rule also affirms 

DHS’s and DOL’s determination that 

implementation of the consultative 

relationship may be established through 

regulations that determine the method 

by which DOL will provide the 

necessary advice to DHS. 

B. The CATA I Litigation, 2011 Wage 

Rule, and Congressional Riders 

In 2008, DOL issued regulations 

governing DOL’s role in the H–2B 

temporary worker program. The 

regulation established, among other 

things, a methodology for determining 

the wage that a prospective H–2B 

employer must pay. Labor Certification 

Process and Enforcement for Temporary 

Employment in Occupations Other 

Than Agriculture or Registered Nursing 

in the United States (H–2B Workers), 

and Other Technical Changes, 73 FR 

78020 (Dec. 19, 2008) (the 2008 rule).5

The 2008 rule provided that the 

prevailing wage would be the collective 

bargaining agreement (CBA) wage rate if 

the job opportunity was covered by an 

agreement negotiated at arms’ length 

between a union and the employer; the 

Occupational Employment Statistics 

(OES) wage rate if there was no CBA; a 

survey if an employer elected to provide 

an acceptable survey; or a wage rate 

under the Davis-Bacon Act (DBA), 40 

U.S.C. 276a et seq., or the McNamaraO’Hara Service Contract Act (SCA), 41 

U.S.C. 351 et seq., if one was available 

for the occupation in the area of 

intended employment. See 20 CFR 

655.10 (2009). In the absence of the CBA 

wage, the employer could elect to use 

the applicable SCA or the DBA wage in 

lieu of the OES wage. See 20 CFR 

655.10(b) (2009). The 2008 rule and the 

agency guidance implementing it 

required that when prevailing wage 

determinations were based on the OES 

wage survey, which is compiled by the 

Bureau of Labor Statistics (BLS), the 

wage had to be structured to contain 

four tiers to reflect skill and 

experience.6 DOL subjected most 

provisions of the 2008 rule to the 

Administrative Procedure Act’s (APA) 

procedural requirements, but because 

the agency had already been 

implementing the four-tiered wages in 

the H–2B program pursuant to subregulatory guidance,7 DOL did not seek 

public comments on the use of the fourtiered wage methodology for 

determining prevailing wages when 

promulgating the 2008 rule. See 73 FR 

at 78031. In 2009, shortly after the 

promulgation of the 2008 H–2B 

regulation, a suit was filed under the 

APA challenging several aspects of the 

2008 rule. See Comite de Apoyo a los 

Trabajadores Agricolas (CATA) v. Solis, 

No. 2:09–cv–240–LP, 2010 WL 3431761 

(E.D. Pa. 2010) (CATA I). Among the 

issues raised in that litigation was the 

use of the four-tiered wage structure in 

the H–2B program. In an August 30, 

2010 decision, the court ruled that DOL 

had violated the APA by failing to 

adequately explain its reasoning for 

adopting skill and experience levels as 

part of the H–2B prevailing wage 

determination process. Id. at * 19. The 

court ordered promulgation of ‘‘new 

rules concerning the calculation of the 

prevailing wage rate in the H–2B 

program that are in compliance with the 

[APA].’’ Id. at * 27. 

In response to the CATA I order, DOL 

published a final rule, Wage 

Methodology for the Temporary Nonagricultural Employment H–2B 

Program, on January 19, 2011, 76 FR 

3452 (the 2011 Wage Rule). In that rule, 

DOL determined that ‘‘there are no 

significant skill-based wage differences 

in the occupations that predominate in 

the H–2B program, and to the extent 

such differences might exist, those 

differences are not captured by the 

existing four-tier wage structure.’’ 76 FR 

at 3460. Therefore, the 2011 Wage Rule 

revised the wage methodology by 

eliminating the 2008 rule’s four-tier 

wage structure on the ground that it 

violated the obligation to set H–2B 

wages at a rate that did not adversely 

affect U.S. workers’ wages.8 Id. at 3458– 

3461. 

The new methodology set the 

prevailing wage as the highest of the 

OES arithmetic mean wage for each 

occupational category in the area of 

intended employment; the applicable 

SCA/DBA wage rate; or the CBA wage. 

The rule also eliminated the use of 

employer-provided surveys as 

alternative wage sources, except in 

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Federal Register / Vol. 80, No. 82 / Wednesday, April 29, 2015 / Rules and Regulations 24149 

9These circumstances include very specific 

situations in which the job may be in a geographic 

location that is not included in BLS’s data 

collection for the OES (e.g., the Commonwealth of 

the Northern Mariana Islands) or where the job 

opportunity is not ‘‘accurately represented’’ within 

the job classification used in those surveys. 76 FR 

at 3466–3467. 

10These include the Consolidated Appropriations 

Act of 2012, Public Law 112–74, 125 Stat. 786 (Dec. 

23, 2011); Continuing Appropriations Resolution, 

2013, Public Law 112–175, 126 Stat. 1313 (Sept. 28, 

2012); Consolidated and Further Continuing 

Appropriations Act, 2013, Public Law 113–6, 127 

Stat. 198 (Mar. 26, 2013); Continuing 

Appropriations Act, 2014, Public Law 113–46, 127 

Stat. 558 (Oct. 17, 2013); and Joint Resolution 

Making further Continuing Appropriations for 

Fiscal Year 2014, Public Law 113–73, 128 Stat. 3 

(Jan. 15, 2014). 

11The Departments issued the 2013 IFR jointly to 

dispel questions that arose contemporaneously with 

its promulgation about the respective roles of the 

two agencies and the validity of DOL’s regulations 

as an appropriate way to implement the interagency 

consultation specified in section 214(c)(1) of the 

INA, 8 U.S.C. 1184(c)(1). See supra Sec. I.A. 

12A substantial number of comments on the IFR 

repeated, to a great extent, the same arguments that 

had been raised in connection with the 2011 

rulemaking. See 76 FR at 3458–3463. 

limited circumstances.9 The effective 

date of the 2011 Wage Rule was 

originally set for January 1, 2012. 

However, as a result of litigation 

challenging the effective date and 

following notice-and-comment 

rulemaking, DOL issued a final rule, 76 

FR 45667 (Aug. 1, 2011), revising the 

effective date of the 2011 Wage Rule to 

September 30, 2011, and a second final 

rule, 76 FR 59896 (Sept. 28, 2011), 

further revising the effective date of the 

2011 Wage Rule to November 30, 2011. 

Shortly before the 2011 Wage Rule 

was to become effective, Congress 

issued an appropriations rider 

effectively barring its implementation. 

The Consolidated and Further 

Continuing Appropriations Act, 2012, 

enacted on November 18, 2011, 

provided that ‘‘[n]one of the funds made 

available by this or any other Act for 

fiscal year 2012 may be used to 

implement, administer, or enforce, prior 

to January 1, 2012 the [2011 Wage 

Rule].’’ Public Law 112–55, 125 Stat. 

552, Div. B, Title V, sec. 546 (Nov. 18, 

2011) (the November 2011 

Appropriations Act). In response to the 

Congressional prohibition on 

implementation, DOL delayed the 

effective date of the 2011 Wage Rule 

until January 1, 2012. 76 FR 73508 (Nov. 

29, 2011). The delayed effective date 

was necessary because, although the 

November 2011 Appropriations Act 

prevented the expenditure of funds to 

implement, administer, or enforce the 

2011 Wage Rule, it did not prevent the 

2011 Wage Rule from going into effect. 

76 FR at 73509. Had the 2011 Wage Rule 

gone into effect, it would have 

superseded and nullified the prevailing 

wage provisions from the 2008 rule, 

leaving DOL without a methodology to 

make prevailing wage determinations. 

Id. Because the issuance of a prevailing 

wage determination is a condition 

precedent to approving an employer’s 

request for an H–2B temporary labor 

certification, 20 CFR 655.10, DOL’s H– 

2B temporary labor certification 

program would be inoperable without 

the ability to issue a prevailing wage 

pursuant to regulatory standards. 

Accordingly, DOL determined that it 

was necessary, in light of the November 

2011 Appropriations Act, to delay the 

effective date of the 2011 Wage Rule to 

allow DOL to continue to make 

prevailing wage determinations under 

the wage provisions of the 2008 rule. 

Subsequent appropriations 

legislation 10 contained the same 

restriction prohibiting DOL’s use of 

appropriated funds to implement, 

administer, or enforce the 2011 Wage 

Rule. This legislation necessitated 

subsequent extensions of the effective 

date of that rule. See 76 FR 82115 (Dec. 

30, 2011) (extending the effective date to 

Oct. 1, 2012); 77 FR 60040 (Oct. 2, 2012) 

(extending the effective date to Mar. 27, 

2013); 78 FR 19098 (Mar. 29, 2013) 

(extending the effective date to Oct. 1, 

2013). While the 2011 Wage Rule 

implementation was suspended, DOL 

remained unable to implement the wage 

methodology that, among other things, 

eliminated the four-tier wage structure, 

and instead relied on the prevailing 

wage provisions of the 2008 rule, 

including the use of the four-tiered wage 

structure, when issuing a prevailing 

wage based on the OES. 

C. CATA II and the 2013 Interim Final 

H–2B Wage Rule 

Based on DOL’s ongoing use of the 

2008 rule’s four wage tiers, the CATA I 

plaintiffs returned to court seeking 

immediate vacatur of the four-tiered 

wage structure from the 2008 rule. On 

March 21, 2013, the district court agreed 

with plaintiffs that its prior holding that 

the four-tiered wage structure was 

promulgated in violation of the APA 

remained unremedied. 

Therefore, the court vacated 20 CFR 

655.10(b)(2), which was the basis for the 

four-tiered wage structure, and 

remanded the matter to DOL, ordering it 

to comply within 30 days. Comite de 

Apoyo a los Trabajadores Agricolas v. 

Solis, 933 F. Supp. 2d 700 (E.D. Pa. 

2013) (CATA II). Shortly thereafter, on 

April 1, 2013, the U.S. Court of Appeals 

for the Eleventh Circuit upheld a 

separate district court decision that 

granted a preliminary injunction against 

enforcement of the 2012 H–2B rule on 

the ground that the employers are likely 

to prevail on their allegation that DOL 

lacks H–2B rulemaking authority. Bayou 

Lawn & Landscape Servs., 713 F.3d 

1080. 

In response to the vacatur and 30-day 

compliance order in CATA II, and the 

Eleventh Circuit’s decision in Bayou 

Lawn & Landscape Servs., the 

Departments 11 promulgated an interim 

final rule, Wage Methodology for the 

Temporary Non-Agricultural 

Employment H–2B Program, Part 2, 78 

FR 24047 (Apr. 24, 2013) (2013 IFR), 

which established a new wage 

methodology. In the 2013 IFR, the 

Departments struck the phrase, ‘‘at the 

skill level,’’ from 20 CFR 655.10(b)(2). 

As a result of the deletion of this phrase, 

the Departments now require that 

prevailing wage determinations issued 

using the OES survey be based on the 

mean wage for the occupation in the 

area of intended employment. 78 FR at 

24053. The 2013 IFR became effective 

on April 24, 2013, the date of 

publication, because of the need to 

comply within the 30-day period 

ordered by the CATA II Court. The rule 

was published pursuant to 5 U.S.C. 

553(b)(B), which authorizes agencies to 

make a rule effective immediately upon 

a showing of ‘‘good cause.’’ 

Significantly, however, the 2013 IFR 

only implemented the court-ordered 

change to the wage methodology in 20 

CFR 655.10(b)(2). It left intact all other 

provisions of the wage methodology and 

procedures contained in the 2008 rule at 

20 CFR 655.10, including allowing the 

use of employer-submitted surveys, and 

permitting voluntary use of an SCA or 

DBA wage if one was available for the 

occupation in the area of intended 

employment. 

Despite immediate implementation of 

the provisions of the 2013 IFR, the 

Departments requested comments on all 

aspects of the prevailing wage 

methodology of 20 CFR 655.10, 

including, among other things, whether 

the OES mean is the appropriate basis 

for determining the prevailing wage; 

whether wages based on the DBA or 

SCA should be used to determine the 

prevailing wage and if so, to what 

extent; and whether the continued use 

of employer-submitted surveys should 

be permitted and if so, how to better 

ensure their methodological soundness. 

The comment period closed on June 10, 

2013, and the Departments received 

over 300 comments on all aspects of the 

H–2B wage methodology from 

interested parties.12

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13The 2009 Prevailing Wage Guidance set the 

methodology for employer-provided surveys across 

the DOL-administered programs. See Prevailing 

Wage Determination Policy Guidance, 

Nonagricultural Immigration Programs, Revised 

(revised Nov. 2009) (‘‘2009 Prevailing Wage 

Guidance’’ or ‘‘2009 guidance’’), available at http:// 

www.flcdatacenter.com/download/NPWHC_

Guidance_Revised_11_2009.pdf. 

On July 23, 2013, DOL proposed the 

indefinite delay of the effective date of 

the 2011 Wage Rule, and accepted 

comments from the public on the 

proposed indefinite delay through 

August 9, 2013. 78 FR 44054. The 

reasons for this delay were two-fold: 

First, at that time, Congress’s continued 

denial of appropriated funds for this 

purpose, with no indication that the 

prohibition would be lifted in the 

future, made implementation of the 

2011 Wage Rule effectively impossible. 

Second, at that time, the Departments 

were reviewing and analyzing the 

comments received on the 2013 IFR to 

determine whether changes to 20 CFR 

655.10 and 8 CFR 214.2(h)(6) were 

warranted in light of the public 

comments. For these reasons, on August 

30, 2013, DOL published a final rule 

indefinitely delaying the effective date 

of the 2011 Wage Rule. 78 FR 53643, 

53645 (indefinite delay rule). In the 

final indefinite delay rule, DOL stated 

that when ‘‘Congress no longer prohibits 

implementation of the 2011 Wage Rule, 

the Department [of Labor] will publish 

a document in the Federal Register 

within 45 days of that event apprising 

the public of the status of 20 CFR 655.10 

and the effective date of the 2011 Wage 

Rule.’’ Id. DOL also stated that, ‘‘if 

Congress lifts the prohibition against 

implementation of the 2011 Wage Rule, 

the Department [of Labor] would need 

time to assess the current regulatory 

framework, to consider any changed 

circumstances, novel concerns or new 

information received, and to minimize 

disruptions.’’ 78 FR at 53645. 

On January 17, 2014, the Consolidated 

Appropriations Act, 2014, Public Law 

113–76, 128 Stat. 5, was enacted. In that 

law, for the first time in over two years, 

DOL’s appropriations did not prohibit 

the implementation or enforcement of 

the 2011 Wage Rule. Moreover, on 

February 5, 2014, the U.S. Court of 

Appeals for the Third Circuit held that 

‘‘DOL has authority to promulgate rules 

concerning the temporary labor 

certification process in the context of 

the H–2B program, and that the 2011 

Wage Rule was validly promulgated 

pursuant to that authority.’’ La. Forestry 

Ass’n v. Perez, 745 F.3d 653, 669 (3d 

Cir. 2014). The Third Circuit further 

found that DOL did not act in 

contravention of the procedural 

requirements of the APA in issuing the 

2011 Wage Rule, and that the INA’s 

requirement of the four wage tiers in the 

H–1B program, 8 U.S.C. 1182(p)(4), 

section 212(p)(4) of the INA, is not 

mandated in the H–2B program. Id. at 

680. Under well-settled law, following 

the removal of the prohibitive rider, 

DOL was ‘‘free to take any steps deemed 

necessary to implement, administer and 

enforce the regulations.’’ Am. Fed’n of 

Gov. Employees v. OPM, 821 F.2d 761, 

764 (D.C. Cir. 1987). 

D. The CATA III Decision and Its Impact 

on H–2B Wage Rulemaking 

As discussed above, given the swift 

deadline for compliance in the CATA II 

decision, the 2013 IFR adopted a 

focused approach, limited to 

eliminating the use of skill levels in 

setting wages under 20 CFR 

655.10(b)(2). 78 FR 24047, 24053. 

Although comments were solicited in 

the 2013 IFR on the use of employerprovided surveys and the use of the 

SCA and DBA wage determinations to 

set the prevailing wage, no changes 

were made in the 2013 IFR to 20 CFR 

655.10(b)(4), (b)(5), or (f) from the 2008 

rule, which governed those wage 

sources, or to the procedures for 

employers to request and receive a 

prevailing wage. Id. at 24053–55. 

In 2014, CATA challenged the 

Departments’ decision under the 2013 

IFR to continue to permit use of 

employer-provided surveys to set the 

prevailing wage under 20 CFR 655.10(f). 

Comite de Apoyo a los Trabajadores 

Agricolas v. Perez, No. 2:14–02657, 

2014 WL 4100708 (E.D. Pa. July 23, 

2014). In addition, CATA challenged 

DOL’s continued use under the 2013 

IFR of the 2009 Prevailing Wage 

Guidance,13 which continued to permit 

surveys to incorporate skill levels even 

though DOL had eliminated skill levels 

from prevailing wage determinations 

based on the OES methodology. Id. The 

District Court dismissed the case on 

procedural grounds. On December 5, 

2014, the appellate court reversed the 

dismissal in Comite de Apoyo a los 

Trabajadores Agricolas v. Perez, 774 

F.3d 173, 191 (3d Cir. 2014) (CATA III), 

vacating both 20 CFR 655.10(f), which 

established the conditions under which 

DOL would accept employer-provided 

surveys to set the prevailing wage, as 

well as the 2009 Prevailing Wage 

Guidance. 

The CATA III court invalidated the 

use of employer-provided surveys in the 

H–2B program on both substantive and 

procedural grounds under the APA. 

First, the court held that DOL’s failure 

to explain the broad acceptance of 

employer-provided surveys where an 

OES wage is available was procedurally 

invalid, particularly because this 

decision was a policy change from the 

2011 Wage Rule’s prohibition of most 

employer-provided surveys as an 

alternative to the OES. 774 F.3d at 187– 

188. Next, the court held that Section 

655.10(f) was arbitrary, and therefore 

substantively invalid under the APA, 

given DOL’s findings in the 2011 Wage 

Rule, 76 FR at 3465, that the OES is the 

‘‘most consistent, efficient, and accurate 

means of determining the prevailing 

wage rate for the H–2B program.’’ The 

court further considered issues that DOL 

had not addressed as part of the 

development of the administrative 

record in the 2011 Wage Rule; it held 

that the survey provision of the 2013 

IFR was substantively invalid under the 

APA because the survey provision 

permitted wealthy employers to 

commission surveys that resulted in a 

lower prevailing wage than that paid by 

less affluent employers without means 

to produce such surveys, and resulted in 

significant variations in the prevailing 

wage within a single occupation in the 

same geographic location. 774 F.3d at 

189–190. Finally, the court held that the 

2009 Wage Guidance violated the APA 

because it allowed employers to submit 

employer-provided surveys that 

contained tiered wages based on skill 

levels. The court held that this 

conflicted with the CATA II order, 

which required prevailing wages to be 

calculated based on the mean of wages 

in the occupation without regard to skill 

levels, and 20 CFR 655.10(b) of the 2013 

IFR, which eliminated tiered wages in 

the calculation of the OES wage. 774 

F.3d at 190–191. 

The court justified its decision to 

vacate the wage survey provision of the 

IFR, 20 CFR 655.10(f), along with the 

Wage Guidance. ‘‘[I]f we did not do so, 

we would leave in place a rule that is 

causing the very adverse effect that DOL 

is charged with preventing, and we 

would be ‘legally sanction[ing] an 

agency’s disregard of its statutory or 

regulatory mandate.’’’ 774 F.3d at 191 

(quoting CATA II, 933 F. Supp. 2d at 

714). Thus, the court ‘‘direct[ed] that 

private surveys no longer be used in 

determining the mean rate of wage for 

occupations except where an otherwise 

applicable OES survey does not provide 

any data for an occupation in a specific 

geographical location, or where the OES 

survey does not accurately represent the 

relevant job classification.’’ Id. The 

court concluded by suggesting the 

immediate implementation of the 2011 

Wage Rule on employer-provided 

surveys as an interim final rule, 

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14Employment and Training Administration, 

Announcements, http://

www.foreignlaborcert.doleta.gov (Mar. 4, 2015). 

explaining: ‘‘That rule offers rational, 

lawful limits on the use of employer 

surveys, already has gone through 

notice and comment, has been funded 

by Congress in its 2014 authorization, 

and has been upheld by this Court. 

. . .’’ Id. Because of CATA III’s vacatur 

of that part of the wage regulation 

permitting the use of employer-provided 

surveys to set the prevailing wage, DOL 

immediately ceased accepting all 

employer-provided surveys. In light of 

the vacatur of 20 CFR 655.10(f), DOL 

lacked legal authority to accept such 

surveys without engaging in additional 

rulemaking. 

Given the substantive concerns 

expressed by the CATA III court about 

the validity of employer-provided 

surveys in the H–2B program, DOL’s 

options for accepting such surveys 

under this final rule are now necessarily 

more limited than under the 2013 IFR. 

The 2011 Wage Rule generally 

prohibited surveys, but allowed 

exceptions in specific situations in 

which the job may be in a geographic 

location that is not included in BLS’s 

data collection for the OES or where the 

job opportunity is not ‘‘accurately 

represented’’ within the job 

classification used in those surveys, and 

those determinations were supported by 

DOL’s contemporaneous fact-finding. 76 

FR at 3466–3467. We asked the public 

in the 2013 IFR for any ‘‘additional data 

on the accuracy and reliability of private 

surveys covering traditional H–2B 

occupations to allow for further factual 

findings on the sufficiency of private 

surveys for setting prevailing wage 

rates’’ in light of the concerns expressed 

in the 2011 Wage Rule, 78 FR at 24055, 

and this preamble reviews below that 

input and makes additional 

administrative factual determinations. 

On March 14, 2014, DOL announced 

its decision to engage in further notice 

and comment rulemaking ‘‘working off 

the 2011 Wage Rule as a starting point.’’ 

79 FR 14450, 14453. DOL concluded at 

that point that ‘‘recent developments’’ 

in the H–2B program required 

additional consideration of the 

comments submitted in connection with 

the 2013 IFR, and that further notice 

and comment was appropriate. Id. 

However, the U.S District Court for the 

Northern District of Florida’s decision 

in Perez v. Perez, No. 3:14-cv-682 (N.D. 

Fla. Mar. 4, 2015) (Perez), discussed 

below now requires us to address the H– 

2B wage issues more expeditiously than 

planned in March 2014. 

In finalizing the 2013 IFR, the 

Departments underscore that 

stakeholders have had several 

opportunities since 2008 to comment on 

the three primary issues covered by this 

final rule: (1) The appropriateness of 

using the mean wage or tiered wage 

when basing the prevailing wage on the 

OES; (2) the appropriate role of the SCA 

and DBA wage rates in setting the H–2B 

prevailing wage; and (3) whether and 

under what circumstances an employerprovided survey could be used to set the 

prevailing wage. Most recently, we 

provided the public with the 

opportunity to comment on all aspects 

of this final rule in response to the 2013 

IFR, and we received over 300 

comments from a range of interested 

parties, including employers, worker 

advocates, and members of Congress. 

Therefore, we have balanced the 

Departments’ and the public’s interest 

in additional notice and opportunity for 

public comment against our current 

need to timely act in response to the 

Perez decision, discussed below, as well 

as our need to achieve some stability in 

the administration of the H–2B program. 

For these reasons, we have assessed the 

input received in response to the 

request for comments in the 2013 IFR, 

and we issue a final rule today based on 

the review and analysis of those 

comments. 

E. Perez and Good Cause To Issue This 

Final Wage Rule With an Immediate 

Effective Date 

1. The Perez Vacatur and Its Impact on 

Program Operations 

Three months after the CATA III 

decision, on March 4, 2015, the U.S. 

District Court for the Northern District 

of Florida, which previously had 

vacated DOL’s 2012 H–2B rule and 

enjoined its enforcement in Bayou II, 

vacated the 2008 rule and permanently 

enjoined DOL from enforcing it. Perez v. 

Perez, No. 14-cv-682 (N.D. Fla. Mar. 4, 

2015). As in its decision in Bayou II 

vacating the 2012 H–2B rule, the court 

in Perez found that DOL had no 

authority under the INA to 

independently issue legislative rules 

governing the H–2B program. Perez, slip 

op. at 6. Based on the Perez vacatur 

order and the permanent injunction, 

DOL ceased operating the H–2B 

program to comply immediately with 

the court’s order. Shortly after the court 

issued its decision, DOL posted a notice 

on its Web site informing the public that 

‘‘effective immediately, DOL can no 

longer accept or process requests for 

prevailing wage determinations or 

applications for labor certification in the 

H–2B program.’’ 14

At the time of the Perez vacatur order 

on March 4, 2015, DOL had pending 

over 400 requests to set the prevailing 

wage for an H–2B occupation, and 

almost 800 applications for H–2B 

temporary labor certification 

representing approximately 16,408 

workers. In order to minimize 

disruption to the H–2B program and to 

prevent economic dislocation to 

employers and employees in the 

industries that rely on H–2B foreign 

workers and to the general economy of 

the areas in which those industries are 

located, on March 16, 2015, DOL filed 

an unopposed motion requesting a 

temporary stay of the Perez vacatur 

order. On March 18, 2015, the court 

entered an order temporarily staying the 

vacatur of the H–2B rule until and 

including April 15, 2015. On April 15, 

2015, at the request of proposed 

intervenors, the court entered a second 

order extending the temporary stay up 

to and including May 15, 2015. The 

court in Perez requested briefing on 

several issues, including whether the 

plaintiff had standing to challenge the 

2008 rule. The court’s extension of the 

stay on April 15 occurred late in the 

day, after DOL had already initiated 

processes necessary to provide for an 

orderly cessation of the H–2B program 

and after DOL had already posted a 

notice to the regulated community on its 

Web site that the H–2B program would 

be closed again the next day. On April 

16, 2015, following the court’s stay 

extension, DOL immediately posted a 

new notice on its Web site that it would 

continue to operate the H–2B program 

as it existed at the time of the Perez 

vacatur order and resume normal 

operations. 

The court order in Perez did not 

vacate the 2013 IFR, and the court’s 

concerns about DOL’s independent 

regulatory authority do not impact the 

authority for issuing the 2013 IFR, 

which was promulgated jointly by DOL 

and DHS. However, although the 

Departments requested comment on all 

of the prevailing wage methodology for 

the H–2B program when they issued the 

2013 IFR as discussed above, the 2013 

IFR only amended the H–2B prevailing 

wage methodology in one way: it made 

a single change to 20 CFR 655.10(b)(2) 

to eliminate the use of skill levels in 

setting wages based on the OES. The 

2013 IFR left the rest of the wage 

methodology and procedures from the 

2008 rule untouched, and those 

provisions remained in effect until 

CATA III vacated 20 CFR 655.10(f). The 

court order in Perez then vacated the 

remainder of 20 CFR 655.10, except for 

20 CFR 655.10(b)(2), which was 

amended in the 2013 IFR and thus not 

subject to the Perez vacatur. Thus, the 

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15While the provisions of 20 CFR 655.10 

continued to be published in the Federal Register 

following the Perez decision, only 20 CFR 

655.10(b)(2), which was altered in the 2013 IFR, 

remains operative following Perez. Accordingly, the 

Departments discuss all provisions of 20 CFR 

655.10 contained in the Federal Register on the 

date of the Perez decision in the past tense in this 

final wage rule, except for those contained in 

subparagraph (b)(2). 

16The APA’s good cause exception to notice and 

comment applies upon a finding that those 

procedures are ‘‘impracticable, unnecessary, or 

contrary to the public interest.’’ 5 U.S.C. 553(b)(B). 

Perez vacatur eliminated virtually all of 

DOL’s wage methodology and 

procedures for setting prevailing wages, 

including the crucial regulatory 

provision that ‘‘[t]he employer must 

request a prevailing wage determination 

from the NPC in accordance with the 

procedures established by this 

regulation’’ set out at 20 CFR 655.10(a); 

the requirement that the prevailing wage 

be set at a CBA wage rate that was 

negotiated at arms’ length between the 

union and the employer if there was a 

CBA covering the job opportunity in 20 

CFR 655.10(b)(1); and the provision 

permitting the employer to request a 

DBA or SCA wage rate in 20 CFR 

655.10(b)(5). The combination of the 

vacatur of 20 CFR 655.10(f) in CATA III 

and the decision in Perez left DOL 

without a complete methodology or any 

procedures to set prevailing wages in 

the H–2B program.15

DHS is charged with adjudicating 

petitions for a nonimmigrant worker 

(commonly referred to as Form I–129 

petitions or, in this rule, ‘‘H–2B 

petitions’’), filed by employers seeking 

to employ H–2B workers. But, as 

discussed earlier, Congress directed the 

agency to issue its decisions relating to 

H–2B petitions ‘‘after consultation with 

appropriate agencies of the 

Government.’’ 8 U.S.C. 1184(c)(1), INA 

section 214(c)(1). Legacy INS and now 

DHS have historically consulted with 

DOL on U.S. labor market conditions to 

determine whether to approve an 

employer’s petition to import H–2B 

workers. See 73 FR 78104, 78110 (DHS) 

(Dec. 19, 2008); 55 FR 2606, 2617 (INS) 

(Jan. 26, 1990). DOL plays a significant 

role in the H–2B program because DHS 

‘‘does not have the expertise needed to 

make any labor market determinations, 

independent of those already made by 

DOL.’’ 73 FR at 78110; see also 55 FR 

at 2626. Without consulting with DOL, 

DHS lacks the expertise to adequately 

make the statutorily mandated 

determination about the availability of 

United States workers to fill the 

proposed job opportunities in the 

employers’ Form I–129 petitions. See 8 

U.S.C. 1101(a)(15)(H)(ii)(b), INA section 

101(a)(15)(H)(ii)(b); 78 FR 24047, 24050 

(DHS–DOL) (Apr. 24, 2013). DHS 

regulations therefore require employers 

to obtain a temporary labor certification 

from DOL before filing a petition with 

DHS to import H–2B workers. See 8 CFR 

214.2(h)(6)(iii)(A), (C), (iv)(A). In 

addition, as part of DOL’s certification, 

DHS regulations require DOL to 

‘‘determine the prevailing wage 

applicable to an application for 

temporary labor certification in 

accordance with the Secretary of Labor’s 

regulation at 20 CFR 655.10.’’ 8 CFR 

214.2(h)(6)(iii)(D). 

DOL has fulfilled its consultative role 

in the H–2B program through the use of 

legislative rules to structure its advice to 

legacy INS and now DHS for several 

decades. See 33 FR 7570–71 (DOL) (May 

22, 1968); 73 FR 78020 (DOL) (Dec. 19, 

2008). Before DOL issued the 2008 rule, 

it supplemented its regulations with 

guidance documents that set substantive 

standards for wages and recruitment 

and structured the manner in which the 

agency processed applications for H–2B 

labor certification. See 73 FR at 78021– 

22. One district court has held that 

DOL’s pre-2008 H–2B guidance 

document was a legislative rule that 

determined the rights and obligations of 

employers and employees, and DOL’s 

failure to issue the guidance through the 

notice and comment process was a 

procedural violation of the APA. As a 

result, the court invalidated the 

guidance. See CATA I, 2010 WL 

3431761, at *19, 25. Similarly, the U.S. 

Court of Appeals for the DC Circuit has 

held that DOL violated the procedural 

requirements of the APA when it 

established requirements that ‘‘set the 

bar for what employers must do to 

obtain approval’’ of the H–2A labor 

certification application, including wage 

and housing requirements, in guidance 

documents. Mendoza v. Perez, 754 F.3d 

1002, 1024 (D.C. Cir. 2014) (setting 

substantive standards for labor 

certification in the H–2A program 

requires legislative rules subject to the 

APA’s notice and comment procedural 

requirements). The APA therefore 

prohibits DOL from setting substantive 

standards for the H–2B program through 

the use of guidance documents that 

have not gone through notice-andcomment rulemaking. 

The Departments are again facing the 

prospect of experiencing another 

program hiatus if and when the 

temporary stay expires on or before May 

15, 2015. DOL’s 2008 rule, which 

includes all the procedural provisions 

necessary for employers to request and 

DOL to issue a prevailing wage 

determination, is the only 

comprehensive mechanism in place for 

DOL to provide advice to DHS because 

the 2008 rule sets the framework, 

procedures, and applicable standards 

for receiving, reviewing, and issuing H– 

2B prevailing wages and labor 

certifications. DHS regulations require 

employers to obtain a temporary labor 

certification from DOL before filing a 

petition with DHS to import H–2B 

workers, and DHS is precluded by its 

own regulations from accepting any H– 

2B petition without a temporary labor 

certification from DOL. See 8 CFR 

214.2(h)(6)(iii)(A), (C), (iv)(A). In 

addition, as part of DOL’s certification, 

DHS regulations require DOL to 

‘‘determine the prevailing wage 

applicable to an application for 

temporary labor certification in 

accordance with the Secretary of Labor’s 

regulation at 20 CFR 655.10.’’ 8 CFR 

214.2(h)(6)(iii)(D). Moreover, without 

advice from DOL, DHS lacks the 

capability to test the domestic labor 

market or determine whether there are 

available U.S. workers to fill the 

employer’s job opportunity. As a result, 

if and when the stay concludes as 

currently scheduled on or before May 

15, 2015 the vacatur of DOL’s 2008 rule 

will require DOL to once again cease 

operating the H–2B program, and DOL 

will again be unable to process 

employers’ requests for prevailing wage 

determinations and temporary 

employment certification applications 

until the agencies can put in place a 

new mechanism for fulfilling the 

statutory directive to ensure that the 

importation of foreign workers will not 

harm the domestic labor market. See 8 

U.S.C. 1101(a)(15)(H)(ii)(b), INA section 

101(a)(15)(H)(ii)(b). 

2. Good Cause To Make This Final Rule 

Effective Immediately 

The APA authorizes agencies to make 

a rule effective immediately, instead of 

imposing a 30-day delay, upon a 

showing of good cause. 5 U.S.C. 

553(d)(3). The APA’s good cause 

exception to a delayed effective date is 

easier to meet than the APA’s exception 

at 5 U.S.C. 553(b)(B) for dispensing with 

notice-and-comment.16 Riverbend 

Farms, Inc. v. Madigan, 958 F.2d 1479, 

1485 (9th Cir. 1992); Am. Fed’n of Gov’t 

Emp., AFL–CIO v. Block, 655 F.2d 1153, 

1156 (D.C. Cir. 1981); U.S. Steel Corp. v. 

EPA, 605 F.2d 283, 289–90 (7th Cir. 

1979). An agency can show good cause 

for eliminating the 30-day waiting 

period when it demonstrates the 

existence of urgent conditions the rule 

seeks to correct or seeks to address 

unavoidable time limitations. U.S. Steel 

Corp., 605 F.2d at 290; United States v. 

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17We note that the Departments are not invoking 

the good cause exception to forego the APA’s 

requirement of notice and comment, because this 

wage rule is a final rule following the request for 

comment in the 2013 IFR, and this preamble sets 

forth our consideration of those comments on all 

aspects of the wage methodology. 

18The procedures for requesting a wage 

determination are set forth in the new 

comprehensive H–2B rule entitled, Temporary Nonagricultural Employment of H–2B Aliens in the 

United States, and published simultaneously as a 

companion rule to this final wage rule. 

Gavrilovic, 551 F.2d 1099, 1104 (8th Cir. 

1977). 

Under the APA’s ‘‘good cause’’ 

exception, an agency can take steps to 

minimize discontinuity in its program 

after a court has vacated a rule by 

making a new rule effective 

immediately. Mid-Tex Elec. Coop. v. 

FERC, 822 F.2d 1123, 1131–34 (D.C. Cir. 

1987) (upholding good cause to issue a 

post-remand interim rule without notice 

and comment or 30-day delayed 

effective date); see also Shell Oil Co. v. 

EPA, 950 F.2d 741, 752 (D.C. Cir. 1991) 

(observing that where the agency had a 

regulatory void as the result of a vacatur 

of its rule, it should consider issuing an 

interim rule under the good cause 

exception because of the disruptions 

posed by discontinuity in the 

regulations); Action on Smoking and 

Health v. Civil Aeronautics Bd., 713 

F.2d 795, 800 (D.C. Cir. 1983) (same). 

Moreover, courts find ‘‘good cause’’ to 

make a rule effective immediately under 

the APA when an agency is moving 

expeditiously to eliminate uncertainty 

or confusion that, left to linger, could 

cause tangible harm or hardship to the 

agency, the program, program users, or 

other members of the public. See, e.g., 

Mid-Tex, 822 F.2d at 1133–34 (agency 

had good cause to proceed without 

notice and comment or 30-day delayed 

effective date to promote continuity and 

prevent ‘‘irremedial financial 

consequences’’ and ‘‘regulatory 

confusion’’); Nat’l Fed’n of Fed. 

Employees v. Devine, 671 F.2d 607, 609, 

611 (D.C. Cir. 1982) (agency had good 

cause to proceed without notice and 

comment or 30-day delayed effective 

date based on emergency circumstances, 

including uncertainty created by 

pending litigation about significant 

aspects of the program, and potential 

harm to agency, to program, and to 

regulated community); AFGE. v. Block, 

655 F.2d at 1157 (agency had good 

cause to proceed without notice and 

comment or 30-day delayed effective 

date where absence of immediate 

guidance from agency would have 

forced reliance upon antiquated 

guidelines, creating confusion among 

field administrators, and caused 

economic harm and disruption to 

industry and consumers); Woods 

Psychiatric Inst. v. United States, 20 Cl. 

Ct. 324, 333 (1990), aff’d, 925 F.2d 1454 

(Fed. Cir. 1991) (agency had good cause 

when program would continue to suffer 

administrative difficulties that had 

previously resulted in litigation and 

might continue to result in litigation 

due to uncertainty and confusion over 

scope of benefits, program standards, 

and eligibility requirements). 

As a result of the Perez vacatur, DOL 

has already had to cease operating the 

H–2B program for two weeks in March 

2015. DOL faces this prospect again at 

the expiration of the stay on or before 

May 15, 2015. The on-again-off-again 

nature of H–2B program operations has 

created substantial confusion, 

uncertainty and disarray for the 

agencies and the regulated community. 

The original vacatur order in Perez left 

DOL with hundreds of pending and 

time-sensitive applications for 

prevailing wages and temporary labor 

certifications. Two weeks later, 

following the court’s stay of the vacatur 

and upon resumption of the H–2B 

program, those cases pending on the 

date of the vacatur created a backlog of 

applications, while, at the same time, 

employers began filing new applications 

for prevailing wages and certifications. 

DOL worked diligently and quickly to 

address the backlog and simultaneously 

keep up with new applications. Then, 

facing the expiration of the stay on April 

15, 2015, DOL once again prepared to 

cease H–2B operations, which included 

posting a notice to the regulated 

community on its Web site that day 

announcing another closure, which was 

then obviated at the last minute by the 

court’s extension of the stay late in the 

day on April 15. The next day, DOL 

announced that despite its earlier 

announcement, it would continue to 

operate the H–2B program as a result of 

the stay extension. These circumstances, 

which are beyond the Departments’ 

ability to control, have resulted in 

substantial disorder and upheaval for 

the Departments, as well as employers 

and employees involved in the H–2B 

program. 

The Departments have concluded that 

because of the program hiatus caused by 

the Perez vacatur, the anticipated 

additional hiatus at the expiration of the 

stay of that order, and the uncertainty 

and confusion surrounding operation of 

the H–2B program, we have good and 

substantial cause to rely on the APA’s 

exception, 5 U.S.C. 553(d)(3), to make 

this rule effective immediately.17 DHS 

and DOL must act expeditiously to 

enable the agencies to meet their 

statutory obligations under the INA and 

to prevent any further program 

disruption and economic dislocation. 

This final wage rule—which addresses a 

necessary component of the broader 

mandate of ensuring an adequate test of 

the U.S. labor market—must come into 

effect on the same day as the companion 

H–2B comprehensive rule, in order to 

provide for a seamless continuity of the 

H–2B program administration and 

enforcement, and complete 

implementation of all regulatory 

provisions.18 Any delay in the effective 

date of this wage rule will require 

implementation of 20 CFR 655.10 

without all the provisions necessary to 

its complete implementation. 

Accordingly, the Departments are 

relying on the APA’s good cause 

exception to the 30-day delayed 

effective date, 5 U.S.C. 553(d)(3), to 

issue this new final rule establishing the 

methodology for DOL to determine the 

prevailing wage in the H–2B program 

with an immediate effective date. 

F. Comments Regarding DHS’s 

Authority To Consult With DOL and To 

Set Wages 

While the comments received from 

the public overwhelmingly focused on 

the changes to the DOL prevailing wage 

methodology, a few submissions 

focused on DHS’s authority to consult 

with DOL and to set wages. Some of 

these comments welcomed DHS’s and 

DOL’s joint promulgation of the 2013 

IFR. Commenters stated that the IFR is 

consistent with statutory authority and 

that consultation with DOL is 

appropriate in light of DOL’s expertise. 

A few commenters, however, stated that 

DHS improperly delegated its authority 

regarding the H–2B program to DOL. 

Another commenter also questioned 

why DHS does not consult with other 

government entities apart from DOL. 

Commenters also asked whether DOL 

had authority to promulgate the 2013 

IFR. Finally, some commenters 

questioned DHS’s statutory authority to 

set H–2B wages, stating that the INA 

does not support DHS’s requirement 

that H–2B employment not adversely 

affect the wages and working conditions 

of United States workers. 

1. DHS’s Authority To Consult With 

DOL 

DHS disagrees with the comments 

that DHS improperly delegated its 

authority involving the H–2B visa 

classification to DOL. The general 

provision at 8 U.S.C. 1184(c)(1), INA 

section 214(c)(1) requires DHS to 

consult with other ‘‘appropriate 

agencies of the Government’’ in 

adjudicating a variety of nonimmigrant 

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24154 Federal Register / Vol. 80, No. 82 / Wednesday, April 29, 2015 / Rules and Regulations 

19 DOL is presently litigating its independent 

authority to issue legislative rules in the H–2B 

program. See Bayou Lawn and Landscape Servs. v. 

Perez, No. 3:12-cv-183, 2014 WL 7496045 (N.D. Fla. 

Dec. 18, 2014), appeal pending, No. 15–10623E 

(11th Cir.); G.H. Daniels III & Assocs. v. Solis, No. 

12-cv-01943, 2013 WL 5216453, at *5 (D. Colo. 

Sept. 17, 2013), appeal pending, No. 13–1479 (10th 

Cir.). The analysis provided in this rule concerning 

the Departments’ consultative relationship under 

the INA makes clear that DOL has the statutory 

authority to issue legislative rules governing the 

temporary labor certification process. Thus, while 

there are other arguments that would equally justify 

DOL’s issuance of legislative rules in this 

circumstance, the Departments do not think it 

necessary to provide a further discussion of this 

issue for the purposes of this rule. 

visa petitions, including petitions for H 

(such as H–2B) nonimmigrants, based 

on the specific requirements of each 

visa category. The H–2B nonimmigrant 

classification allows employers to 

petition for H–2B beneficiaries only ‘‘if 

unemployed persons capable of 

performing such service or labor cannot 

be found in this country.’’ 8 U.S.C. 

1101(a)(15)(H)(ii)(b), INA section 

101(a)(15)(H)(ii)(b). In compliance with 

the statutory requirement under 8 U.S.C. 

1184(c)(1), INA section 214(c)(1), DHS 

has identified DOL as the most 

appropriate agency to consult regarding 

the availability of U.S. workers and their 

wages and working conditions for 

purposes of classifying aliens as H–2B 

nonimmigrants under 8 U.S.C. 

1101(a)(15)(H)(ii)(b), INA section 

101(a)(15)(H)(ii)(B), given DOL’s 

expertise regarding U.S. labor. To satisfy 

the statutory consultation requirement, 

DHS regulations require that an H–2B 

petition for temporary employment in 

the United States be accompanied by an 

approved temporary labor certification 

from DOL. 8 CFR 214.2(h)(6)(iii)(A) and 

(iv)(A). These regulations require DOL 

to make the threshold determination of 

whether a qualified U.S. worker is 

available to fill the petitioning H–2B 

employer’s job opportunity. See 8 CFR 

214.2(h)(6)(iii)(A) and (D). Thus, DHS 

has permissibly conditioned part of its 

own decision to grant an H–2B visa 

petition on DOL’s expert advisory 

opinion, that is, on DOL’s determination 

whether a temporary labor certification 

should be granted. See La. Forestry, 745 

F.3d at 673–74 (citing U.S. Telecom 

Ass’n v. FCC, 359 F.3d 554, 567 (D.C. 

Cir. 2004)). In addition, as part of DOL’s 

certification, DHS regulations require 

DOL to ‘‘determine the prevailing wage 

applicable to an application for 

temporary labor certification in 

accordance with the Secretary of Labor’s 

regulation at 20 CFR 655.10.’’ 8 CFR 

214.2(h)(6)(iii)(D). It is similarly 

permissible for DHS to ‘‘adopt a 

regulatory provision allowing the DOL 

to promulgate a narrow class of rules 

governing the temporary labor 

certification process. Without the ability 

to establish procedures to administer 

the temporary labor certification 

process, the DOL would not be able to 

fulfill the consulting role defined by 

DHS’s charge to the DOL to issue 

temporary labor certifications.’’ La. 

Forestry, 745 F.3d at 674.19

Finally, DHS’s authority to administer 

and enforce immigration laws is 

longstanding. See section 102 of the 

Homeland Security Act of 2002, Public 

Law 107–296, 116 Stat. 2135, 6 U.S.C. 

112, and 8 U.S.C. 1103(a), INA section 

103(a). To ensure that there can be no 

question about the authority and 

validity of DOL’s prevailing wage 

determination regulations in fulfilling 

its consultative role with DHS, this final 

rule includes 8 CFR 214.2(h)(6)(iii)(D), 

which specifically sets forth DOL’s role 

as the appropriate consultative agency 

for purposes of assisting DHS in 

addressing questions necessary to DHS’s 

adjudication of H–2B petitions. 

Similarly, to ensure the validity of the 

regulations outlining procedures to 

determine prevailing wages, DHS and 

DOL are jointly issuing this final rule. 

2. DHS’s Authority To Set H–2B Wages 

DHS disagrees with comments stating 

that DHS lacks legal authority to set H– 

2B wages, and in particular, its 

authority to rely on DOL’s advice, as a 

threshold matter, as to what constitutes 

the prevailing wage for H–2B 

occupations. DHS’s authority to 

administer and enforce immigration 

laws through regulations is well 

established. See section 102 of the 

Homeland Security Act of 2002, Public 

Law 107–296, 116 Stat. 2135, 6 U.S.C. 

112, and 8 U.S.C. 1103(a), INA section 

103(a). Further, 8 U.S.C. 

1101(a)(15)(H)(ii)(b), INA section 

101(a)(15)(H)(ii)(b) establishes the H–2B 

visa classification for a nonagricultural 

temporary worker ‘‘. . . who is coming 

temporarily to the United States to 

perform . . . temporary 

[nonagricultural] service or labor if 

unemployed persons capable of 

performing such service or labor cannot 

be found in this country’’ (emphasis 

added). In order to meet the statutory 

obligations required under 8 U.S.C. 

1101(a)(15)(H)(ii)(b), INA section 

101(a)(15)(H)(ii)(b), and to determine 

whether ‘‘unemployed persons capable 

of performing such service or labor 

cannot be found in this country,’’ an 

adequate testing of the U.S. labor market 

is necessary. Any meaningful test of the 

U.S. labor market requires that H–2B 

petitioning employers must attempt to 

recruit U.S. workers at the prevailing 

wage and pay H–2B beneficiaries such 

prevailing wages. As noted in detail 

above, DOL is the appropriate 

Government agency to set standards for 

testing the U.S. labor market, and to 

determine the manner in which 

prevailing wages affect such tests of the 

U.S. labor market. DHS has permissibly 

conditioned its approval of an H–2B 

petition on DOL’s determination 

whether the U.S. labor market was 

adequately tested using the applicable 

prevailing wage. DHS retains the 

authority to deny a petition 

notwithstanding DOL’s decision to grant 

a temporary labor certification. The 

regulatory provisions involving the 

determination of prevailing wages, 

which are jointly promulgated here, are 

necessary in order for DHS to meet the 

statutory obligations imposed under 8 

U.S.C. 1101(a)(15)(H)(ii)(b), INA section 

101(a)(15)(H)(ii)(b). 

Accordingly, in this rule, DHS is 

adopting the revision to 8 CFR 

214.2(h)(6)(iii)(D) in this rulemaking 

without change. 

II. Methodology for Determining the 

Prevailing Wage 

A. Use of the Occupational Employment 

Statistics Survey 

1. Application of Two- and Four-tiered 

Wage Structures to OES in H–2B: 1998– 

2011 

In 1998, DOL first implemented use of 

the OES survey as an efficient and costeffective way to develop consistent and 

accurate prevailing wage determinations 

in the H–2B program. See GAL 2–98, 

‘‘Prevailing Wage Policy for 

Nonagricultural Immigration Programs’’ 

(November 30, 1998). The OES wage 

survey, issued by the Bureau of Labor 

Statistics (BLS), is among the largest 

continuous statistical survey programs. 

BLS produces the survey materials and 

selects the nonfarm establishments to be 

surveyed using the list of establishments 

maintained by State Workforce Agencies 

(SWAs) for unemployment insurance 

purposes. The OES collects data from 

over 1 million establishments. Salary 

levels based on geographic areas are 

available at the national and State levels 

and for certain territories in which 

statistical validity can be obtained, 

including the District of Columbia, 

Guam, Puerto Rico, and the U.S. Virgin 

Islands. Salary information is also made 

available at the metropolitan and 

nonmetropolitan area levels within a 

State. Wages for the OES survey are 

straight-time, gross pay, exclusive of 

premium pay. Base rate, cost-of-living 

allowances, guaranteed pay, hazardous 

duty pay, incentive pay including 

commissions and production bonuses, 

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20The OES data are used for many purposes in 

government. For example, BLS uses the data to 

make quarterly benchmark adjustments for the 

Employment Cost Index. See http://www.bls.gov/

news.release/eci.toc.htm. BLS also uses the OES 

employment data as the ‘‘denominator’’ to calculate 

rates for the Occupational injury and illness rates. 

See http://www.bls.gov/news.release/osh.toc.htm. 

OES employment and wage distributions are used 

by the Bureau of Economic Analysis to estimate 

social security receipts. See http://www.bea.gov/

newsreleases/national/pi/pinewsrelease.htm. See 

also ‘‘What are the OES data used for?’’ http://

www.bls.gov/oes/oes_ques.htm. 

21On May 22, 2014, the Office of Management 

and Budget (OMB) published a Federal Register 

notice announcing its periodic review of the 2010 

SOC manual for revision in 2018 and soliciting 

public comment. For a timetable of the SOC 

revision process, see http://www.bls.gov/soc/. 

22The expansion from two to four skill levels in 

2005 stemmed from 2004 legislation enacting 

section 212(p)(4) of the INA, 8 U.S.C. 1182(p)(4), 

requiring the prevailing wage issued by DOL in the 

H–1B temporary specialty worker visa program to 

include four tiers commensurate with experience, 

education, and level of supervision. The DOL 

applied that statutory formula to H–2B temporary 

labor certification applications as well as the H–1B 

and permanent labor certification programs 

although there was no corresponding statutory 

provision for the H–2B program. See ETA 

Prevailing Wage Determination Policy Guidance, 

Nonagricultural Immigration Programs (revised May 

9, 2005) (‘‘2005 PWD guidance’’ or ‘‘2005 

guidance’’), available at http://

www.foreignlaborcert.doleta.gov/pdf/policy_nonag_

progs.pdf. 

tips, and on-call pay are included. 

These features are unique to the OES 

survey, which is a comprehensive, 

statistically valid, and useable wage 

reference, and widely used in the DOL’s 

other foreign labor certification 

programs (H–1B and PERM). The 

frequency and precision of the data 

collected, as well as the comprehensive 

nature of the occupations for which 

such data is collected, make it an 

appropriate data source for determining 

applicable wages across the range of 

occupations found in the H–2B 

program. 

BLS surveys workers’ wages based on 

the 2010 Standard Occupational Code 

(SOC) system, which is used by Federal 

statistical agencies to classify workers 

into occupational categories for the 

purpose of collecting, calculating, or 

disseminating data.20 All workers are 

classified into one of 840 detailed 

occupations according to their 

occupational definition.21 To facilitate 

classification, detailed occupations are 

combined to form 461 broad 

occupations, 97 minor groups, and 23 

major groups. Detailed occupations in 

the SOC with similar job duties, and in 

some cases skills, education, and/or 

training, are grouped together. However, 

the OES survey captures no information 

about differences within the groupings 

based on skills, training, experience or 

responsibility levels of the workers 

whose wages are being reported. 

Despite the change in 1998 from 

reliance on State workforce agency 

surveys to the OES survey in the H–2B 

program, DOL continued its prior 

practice of setting a prevailing wage 

based on two skill levels—‘‘entry level’’ 

and ‘‘experienced level’’—as previously 

set out in GAL 4–95 and subsequently 

reiterated in GAL 2–98. Because, as 

noted above, the OES does not provide 

data about skill differential within SOC 

codes, DOL established the entry and 

experienced skill levels mathematically. 

In 1998, the entry level, or Level I, wage 

was set at the mean of the lower onethird of the survey universe 

(approximately the 17th percentile), and 

the experienced level, or Level II, wage 

was the mean wage of workers in the 

upper two-thirds of the survey universe 

(approximately the 67th percentile). 

These two ‘‘skill level’’ tiers were 

expanded in 2005 guidance to include 

four ‘‘skill levels’’—‘‘entry level,’’ 

‘‘qualified,’’ ‘‘experienced,’’ and ‘‘fully 

competent’’—and, based on a linear 

interpolation, Levels 1 through IV were 

set, respectively, at approximately the 

17th percentile, the 34th percentile, the 

50th percentile, and the 67th 

percentile.22 In 2008, DOL proposed and 

finalized regulations governing the H– 

2B temporary worker program, and that 

rule essentially codified various aspects 

of the 2005 guidance, including the 

requirement that the prevailing wage for 

labor certification must include skill 

levels (73 FR 29942, May 22, 2008 (2008 

NPRM); 73 FR 78020, Dec. 19, 2008 

(2008 rule), and DOL’s sub-regulatory 

guidance continued to require four skill 

levels. Because the four-tiered wage 

structure had already been implemented 

through guidance documents, the 2008 

rule did not seek comment on the 

codification of four ‘‘skill levels’’ in the 

H–2B regulations. 

2. Elimination of Tiered Wage Structure 

in H–2B: 2011–present 

As discussed above in Sec. I. B., 

supra, the lack of notice-and-comment 

rulemaking in the 2008 rule on the issue 

of the four-tiered wage structure in the 

H–2B program resulted in a court ruling 

in 2010 that the implementation of the 

tiered wages violated the APA. CATA I, 

2010 WL 3431761. The CATA I decision 

required DOL to, among other things, 

issue a new wage methodology rule that 

complied with the APA’s notice and 

comment requirements. Accordingly, 

DOL engaged in notice-and-comment 

rulemaking that resulted in the 

elimination of the tiered wage structure 

in its 2011 Wage Rule. 75 FR 61578 

(Oct. 5, 2010); 76 FR 3452 (Jan. 19, 

2011). DOL based the elimination of the 

‘‘skill levels’’ in the 2011 Wage Rule on 

the conclusion that: 

almost all jobs for which employers seek H– 

2B workers require little, if any, skill—an 

assertion with which few commenters 

disagreed. H–2B disclosure data from Fiscal 

Year (FY) 2007 to 2009 demonstrates that 

most of the jobs included in the top five 

industries for which the greatest annual 

numbers of H–2B workers were certified— 

construction; amusement, gambling and 

recreation; landscaping services; janitorial 

services; and food services and drinking 

places—require minimal skill to perform, 

according to every standardized source 

available to the Department, such as the SOC, 

O*NET and the Occupational Outlook 

Handbook. These jobs include, but are not 

limited to, landscaper laborer, housekeeping 

cleaner, construction worker, forestry worker, 

and amusement park worker, which make up 

the majority of occupations certified in those 

years, all of which require less than 2 years 

of experience to perform, if that. This 

prevalence of job opportunities in low-skilled 

categories is generally reflected in the H–2B 

employer applications. These jobs have 

typically resulted in a Level I wage 

determination, which is lower than the 

average wage paid to similarly employed 

workers in job classifications in non-H–2B 

jobs. 

76 FR at 3459 (footnote omitted). DOL 

further concluded that ‘‘there is no 

correlation in the four-tier wage 

structure between the skill level 

required to perform a job and the wage 

attached to it.’’ 76 FR at 3460. Noting 

that the comments on the 2010 proposal 

did not present data or analysis to the 

contrary, DOL concluded in the final 

rule that ‘‘there are no significant skillbased wage differences in the 

occupations that predominate in the H– 

2B program, and to the extent such 

differences might exist, those 

differences are not captured by the 

existing four-tier wage structure.’’ Id. 

Ultimately, DOL concluded that the use 

of tiered wages in the H–2B program 

adversely affected U.S. workers because 

it ‘‘artificially lowers [wages] to a point 

that [they] no longer represent[] a 

market-based wage for that occupation.’’ 

76 FR at 3463. The application of the 

four tiers set a wage ‘‘below what the 

average similarly employed worker is 

paid[,]’’ and ‘‘the net result is an adverse 

effect on the [U.S.] worker’s income.’’ 

Id. With the elimination of the wage 

tiers in the 2011 Wage Rule, when the 

prevailing wage determination was 

based on the OES survey, the prevailing 

wage was set at the mean of the wages 

of workers in the occupation in the area 

of intended employment. 

As noted above, because of 

Congressional riders, the 2011 Wage 

Rule was never implemented, and DOL 

continued to implement the four-tiered 

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24156 Federal Register / Vol. 80, No. 82 / Wednesday, April 29, 2015 / Rules and Regulations 

23Although most employers advocated for a 

return to the practice under the 2008 rule, several 

also supported as an alternative the approach 

included in the Border Security, Economic 

Opportunity, and Immigration Modernization Act, 

S. 744, 113th Cong. (2013), which was adopted by 

the Senate in June 2013 as part of its consideration 

of comprehensive immigration reform (hereinafter 

S. 744). S. 744’s relevant provision, section 4211(a), 

reads, in part, ‘‘if there is no [CBA or DBA/SCA 

wage], the wage level [shall be] commensurate with 

the experience, training, and supervision required 

for the job based on Bureau of Labor Statistics 

data.’’ Although it calls for wage levels or tiers, the 

bill does not specify the requisite number of levels. 

Moreover, as noted above, BLS does not issue data 

that takes these factors into account within an SOC. 

24See Procedures for O*NET Job Zone 

Assignment (March 2008), Appendix, available at: 

http://www.onetcenter.org/dl_files/

JobZoneProcedure.pdf. In short, the 5 Job Zones are 

as follows: Job Zone 1 requires little or no 

preparation; Job Zone 2 requires some preparation; 

Job Zone 3 requires medium preparation; Job Zone 

4 requires considerable preparation; and Job Zone 

5 requires extensive preparation. 

approach established in the 2008 rule. 

In 2013, the CATA II decision 

permanently enjoined DOL from using 

the four-tiered approach and vacated the 

corresponding provision in the 2008 

rule. 933 F. Supp. 2d 700, 711–716. 

CATA II held that because DOL 

concluded in the 2011 Wage Rule that 

the four wage tiers ‘‘artificially lower[ ] 

wage[s] to a point that [they] no longer 

represent . . . market-based wage[s] for 

the occupation’’ and ‘‘have a depressive 

effect on the wages of [United States 

workers,]’’ 76 FR at 3477, they were in 

violation of the INA and DHS 

regulations, each of which explicitly 

preclude the grant of labor certifications 

to foreign workers whose employment 

may ‘‘adversely affect wages and 

working conditions of similarly 

employed United States workers.’’ 

CATA II, 933 F. Supp. 2d at 712–713 

(citing 8 U.S.C. 1101(a)(15)(H)(ii)(b), 

INA section 101(a)(15)(H)(ii)(b); 8 CFR 

214.2(h)(6)(iv)(A)). In response to CATA 

II, DOL and DHS issued the 2013 IFR, 

which, for the OES component of the 

prevailing wage determination, again 

eliminated the four-tiered wages, and 

established the mean of workers’ wages 

in the occupation in the area of 

intended employment as the set point 

for a prevailing wage determination 

based on the OES survey. 78 FR 24047. 

3. Comments on the IFR’s Elimination of 

Wage Tiers 

In the 2013 IFR, the Departments 

specifically invited comments on 

‘‘whether the OES mean is the 

appropriate basis for determining the 

prevailing wage.’’ 78 FR at 24053. All 

worker advocates who commented 

expressed general support for the 

continued use of the OES mean, stating 

it was far preferable to the 2008 rule’s 

four-tiered approach. They agreed with 

the Departments’ finding in the IFR that 

dividing wages into four skill levels 

artificially lowered wages. In their view, 

the use of the OES mean substantially 

improves the protection of the wages 

and working conditions of U.S. workers 

because most H–2B jobs require little or 

no prior training or experience. They 

also agreed with the Departments’ 

conclusion that a four-tiered approach is 

inappropriate because there are no 

significant skill-based wage differences 

in the H–2B occupations. Numerous H– 

2B employers and associations of 

employers generally opposed the use of 

the OES mean wage, and most 

advocated for a return to the four-tiered 

structure.23 In their view, the OES mean 

overstates the prevailing wage for most 

H–2B positions because H–2B workers 

typically possess only entry level skills, 

yet under the OES mean they are paid 

a rate higher than more skilled 

permanent workers. Thus, in their view, 

H–2B workers typically should be 

compensated at the lowest of the four 

tiers established for a position. These 

commenters emphasized the impact of 

the substantially increased labor costs 

associated with the use of the OES mean 

wage and the detrimental effect on the 

profitability of their businesses. Many 

commenters expressed particular 

concern about the impact of the OES 

mean on small businesses, many 

predicting that it would make it 

impossible for many employers to 

continue in business, resulting in a 

direct ‘‘adverse effect’’ on the 

employment of U.S. workers. 

Some commenters disagreed with 

DOL’s premise in 2011, i.e., that a single 

prevailing wage is appropriate for each 

occupation in the H–2B program 

because ‘‘the majority of H–2B jobs 

reflect no or few skill differentials[.]’’ 76 

FR at 3459. They asserted that if the 

premise was true, there should be no 

significant differences between the 

average wage and the Level I wage 

under the four-tier wage system (the 

average wage paid to workers in the 

lower third of the wage distribution for 

the occupation). In their view, the 

significant difference between the OES 

mean wage and the mean wages 

computed for the lowest tier under the 

four-tier approach demonstrates that 

significant skill differentials exist 

within H–2B occupations. 

a. Support for Using the OES Mean 

Several worker advocates included 

the same basic position in their 

comments that a four-tier approach is 

inappropriate because there are no 

significant skill-based wage differences 

in the occupations that predominate in 

the H–2B program, and to the extent 

such differences exist, the differences 

are not captured by the existing four-tier 

system. In their view, eliminating tiers 

is appropriate because H–2B jobs 

require little or no experience and the 

use of the OES mean better protects U.S. 

wages and working conditions. 

One commenter, an economic 

advocacy group, acknowledged that the 

use of the OES mean was a significant 

improvement over the approach taken 

in the 2008 rule. In its view, however, 

the IFR does not sufficiently protect the 

wages and working conditions of all 

workers in positions using H–2B 

workers. Setting the wage at the OES 

mean will pressure employers to 

establish the OES mean as the norm for 

a position, resulting in the eventual 

reduction in higher wages now received 

by U.S. workers in the position. 

According to this commenter, the only 

way to ensure that there is no reduction 

in wages paid to U.S workers would be 

to set the H–2B wage at the highest wage 

for a position. As an alternative to this 

method, it suggested that the 

Employment and Training 

Administration (ETA) use the OES 90th 

percentile wage rate for a position, 

which the commenter asserted would 

adequately protect the interests of U.S. 

workers. 

The Departments received extensive 

comments from the forestry industry. 

One commenter suggested that the OES 

mean should be used for all H–2B jobs 

requiring little or no training (all O*NET 

Job Zone 1 positions) absent higher 

wages under a CBA, SCA, or DBA for a 

particular job. For H–2B jobs requiring 

some training (O*NET Job Zone 2 and 

3 positions), it stated that the OES mean 

should also generally be used.24

However, as discussed in the section 

that follows on the use of the SCA and 

DBA wage determinations to set the 

prevailing wage, a number of 

commenters stated that the SCA 

occupational codes and job descriptions 

generally better fit the forest industry’s 

H–2B jobs than those used in the OES. 

b. Opposition to Using the OES Mean 

Several employers and associations of 

employers preferred the use of tiered 

wage rates because such rates, in their 

view, reflect the actual demands of the 

positions for which they seek H–2B or 

U.S. workers. Most of these commenters 

expressed an interest in preserving the 

approach set forth in the 2008 rule. 

Some commenters asserted that DOL 

was bound by the appropriations 

legislation to apply the four-tiered 

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25Although this argument is not developed at 

length by the commenters, they appear to contend 

that because Congress previously had barred 

implementation of the 2011 Wage Rule, which 

eliminated the use of tiered wages, it intended to 

deny the use of appropriated funds to promulgate 

any rule, such as the IFR, which also eliminates 

their use. 

26 2005 PWD guidance explained supra. 

27This group provided an extensive submission 

on the tiered wage issue, and the comment 

contained numerous exhibits, including articles, 

wage comparisons, and declarations submitted in 

lawsuits involving the H–2B program. 

28 It provided the following examples from DOL’s 

Standard Occupational Classification system to 

assert that workers are not ‘‘similarly employed’’ or 

‘‘substantially comparable.’’ ‘‘Landscaping and 

Grounds Keeping Workers’’ includes workers who 

install sprinkler equipment as well as workers who 

pull weeds; ‘‘Amusement and Recreation 

Attendants’’ includes workers in video arcades, 

marinas, golf courses, and ski resorts; and 

‘‘Lifeguards’’ includes lifeguards at the local public 

swimming pool as well as members of a ski patrol 

at winter ski resorts. 

approach.25 Many commenters 

expressed an interest in preserving a 

tiered approach, without expressing a 

strong preference among the 2008 rule, 

ETA’s 2005 PWD guidance,26 or the 

approach outlined in bipartisan 

immigration reform legislation 

considered and passed out of the U.S. 

Senate in 2013 (S. 744). Others 

supported one or more of these 

approaches as alternatives to their 

preferred approach; others preferred the 

S. 744 approach alone. 

Many commenters cited to a study 

conducted by an H–2B employer 

coalition, predicting a substantial 

across-the-board increase in labor costs 

from the use of the OES mean rather 

than tiered wages. Some commenters 

emphasized the impact that use of the 

OES mean would have on wages within 

particular industries. For example, one 

commenter asserted that in the forestry 

industry wage-rate increases would 

exceed 20 percent in most areas and 

exceed 60 percent in Arkansas, Idaho, 

and Virginia. Another commenter stated 

that landscape employers, based on new 

wage determinations, would face an 

average wage increase in H–2B wage 

rates of $3.27 an hour, or more than 36.9 

percent. To emphasize its point about 

the large, unexpected increases 

experienced by employers within its 

industry, this commenter included a 

chart showing by state the amount and 

percentage of increases. To underscore a 

similar point across industries, the 

workforce coalition included a chart 

showing, by state and occupation, the 

amount and percentage increases that 

result from using the OES mean. While 

many commenters complained about 

the effect of using the H–2B rule on 

their particular industries (e.g., 

landscaping, transient amusement, 

lodging), a few commenters sought 

specific exemptions for their industries. 

One commenter (describing itself as a 

group of ‘‘H–2B employers, agents who 

help small businesses . . ., and legal 

and economic experts’’) made the 

following claims to support its view that 

the OES skill-levels should be used to 

set prevailing wages: 

• use of tiered wage levels could not 

allow employers to pay H–2B workers a 

lower wage than was appropriate 

because ETA certified the wage level; 

• the OES mean wage inflates the 

wages for more than half the H–2B 

workers in a particular occupation; 

• the 2011 Wage Rule’s focus on wage 

depression for H–2B workers should 

have been outweighed by concerns 

about the impact of the ultimate wage 

depression on U.S. workers—the loss of 

their jobs; 

• preventing wage deflation for H–2B 

workers does not protect domestic 

workers because the vast majority of H– 

2B applications involve 25 or fewer 

workers and the total number of H–2B 

workers is too small to impact domestic 

workers; 27

• the 2013 IFR’s analysis of wage 

depression was flawed because ‘‘the 

mean exceeds the median of the [wage] 

distribution. This means that a majority 

of workers, permanent or temporary, 

skilled or entry level, earn less than the 

arithmetic mean’’; 

• the 2013 IFR inappropriately did 

not consider that the presence of 

temporary foreign workers is 

complementary and improves the job 

security of permanent U.S. workers, 

making ‘‘[t]he wage depression issue’’ 

irrelevant; 

• the 2013 IFR’s stated premise, i.e., 

that tiered wage rates are inappropriate 

because ‘‘almost all H–2B jobs involve 

unskilled occupations requiring few or 

no skill differentials,’’ 78 FR 24047, 

24053, is incorrect because, in the 

commenter’s view, wage variation 

within H–2B occupations necessarily 

indicates differing skill levels for 

workers in the H–2B program; and 

• the use of a single prevailing wage 

for a classification that includes 

different tasks, skills, and experience, 

‘‘makes no economic sense’’ and will 

prevent the hiring of workers with the 

lowest skills in those categories.28

A different commenter, an association 

of H–2B employers, stated that by 

requiring H–2B workers to be paid at the 

OES mean, the Departments denied 

some H–2B workers wages they were 

previously paid at a higher skill level. 

Several other commenters expressed 

similar concerns, and made the 

following points: 

• DOL should provide data to support 

its position that ‘‘skill levels as 

determined currently do not reflect 

wage levels in lower skilled jobs.’’ It is 

arbitrary to require the same rate be paid 

for a hotel housekeeping position 

without regard to whether the employee 

is able to clean 5 or 15 rooms per day; 

• wages must be market driven, 

reflecting both the demand for workers 

for various seasonal positions not filled 

locally and the levels of experience 

available within the labor pool of 

seasonal and visitor workers; 

• conflating tiers 1 through 4 compels 

employers to pay a wage rate that is 

appropriate for a more skilled worker 

than the lower-skilled worker requested 

by its application, which upwardly 

skews its labor costs not only for the H– 

2B workers but also for other 

individuals it employs; 

• use of the OES mean is based on the 

false premise that unskilled entry-level 

positions should be paid an amount that 

greatly exceeds the Federal minimum 

wage; 

• use of the OES mean requires an 

employer to pay an H–2B wage that is 

not based on the appropriate entry-level 

wage for the position, but instead a rate 

that includes wages paid to more 

experienced workers in the position or 

those with supervisory duties. The 

‘‘premium’’ paid to the more 

experienced workers and supervisors 

appropriately reflected the nature of 

their jobs as year-round, permanent 

employees, differentiating them from 

temporary, supplemental employees; 

• the OES mean reflects, in part, the 

wages paid to workers that have greater 

training, experience, and education than 

entry-level H–2B employees. It is 

inappropriate to include in the 

prevailing wage computation the rates 

paid to senior, experienced workers 

whose contributions to the employer’s 

operations are greater than the H–2B 

workers because the senior workers 

require less supervision and are 

involved in fewer accidents than the 

entry-level workers; and 

• the OES mean arbitrarily inflates 

the wages of entry-level workers and 

deflates the wages of more experienced 

workers. A ‘‘one-size-fits all approach 

ignores real-world wage differentiation 

factors such as supervisory duties, 

responsibilities, seniority/tenure, talent, 

dependability and efficiency.’’ The 

regulatory history supports the use of 

setting wages based on the skill required 

for a position. Before 2005, where an 

applicant was the only employer in an 

area of intended employment, setting 

the H–2B wage required an analysis of 

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29These comments are also addressed in Sec. 

II.B., infra, in the discussion of the use of the SCA 

wage determinations to set the prevailing wage in 

the H–2B program. 

30O*NET is sponsored by ETA through a grant to 

the North Carolina Department of Commerce, which 

operates the National Center for O*NET 

Development through a partnership of public and 

private-sector organizations. The O*NET program is 

the nation’s primary source of occupational 

information. Central to the project is the O*NET 

database, containing information on hundreds of 

standardized and occupation-specific descriptors. 

The database, which is available to the public at no 

cost, is continually updated by surveying a broad 

range of workers from each occupation. The O*NET 

program groups occupations into five ‘‘Job Zones.’’ 

Each Job Zone acts as a grouping of occupations 

that are similar with regard to: How much 

education is needed to do the work, how much 

related experience people need to do the work, and 

how much on-the-job training people need to do the 

work. See http://www.onetcenter.org/about.html 

and https://www.onetonline.org/help/online/zones. 

the skill and experience levels of the 

occupation. The term ‘‘similarly 

employed’’ was defined, in part, in 

DOL’s permanent labor certification 

(PERM) regulations as ‘‘jobs requiring a 

substantially similar level of skills 

within an area of intended 

employment.’’ 20 CFR 656.40(b). 

c. Comments Specific to the Forestry 

Industry 

A number of commenters, including 

worker advocates and employers in the 

industry, expressed the view that the 

SCA rates better reflect wages paid in 

the forestry industry than the OES 

mean.29 A group of worker advocates 

favored the general use of the SCA rates 

where they apply, instead of the OES 

mean for H–2B jobs in this industry. 

This comment asserted that where H–2B 

jobs are grouped together with other 

jobs that cannot be included accurately 

in the same O*NET Job Zone, ETA 

should establish O*NET sub-codes for 

such positions.30 It explained that 

where a particular SOC code contains a 

mix of jobs—some requiring little 

preparation, but many others requiring 

substantially more preparation—the 

OES mean wage inflates the wages for 

jobs requiring little preparation. The 

group proposed that where ETA and its 

O*NET partners have identified suboccupations with different O*NET 

levels within a single SOC code, ETA, 

in consultation with BLS, should 

establish a methodology to determine 

the prevailing wages for those positions. 

It proposed that in the interim ETA 

should adjudicate, on a case-by-case 

basis, the wage rates for affected 

occupations. Apparently, the group 

would have ETA determine whether a 

particular position requires more or less 

preparation than typical for other jobs 

within the OES classification, and then 

provide notice of such adjudication and 

an opportunity for labor organizations 

and worker advocacy groups to 

participate. Additionally, it stated that, 

absent strong evidence to the contrary, 

ETA should establish as a floor for 

‘‘mixed occupational SOC codes’’ a 

wage rate not less than 95% of the OES 

rate for that code. The group asserted 

that relatively few H–2B jobs require 

substantial prior training (O*NET Job 

Zones 4 and 5) and questioned whether 

such jobs are appropriate for H–2B 

certification. For such positions, 

however, it stated that the presumption 

should be that the OES mean wage is 

appropriate. 

An employer stated that gaps in the 

OES survey data result in extreme 

differences from county to county when 

compared year to year and that wide 

variations in required OES wages for 

adjoining counties demonstrate that the 

rates do not reflect actual wage rates 

paid to workers in the counties. In its 

view, the SCA rates better reflect the 

true prevailing wage for forestry 

occupations in an area, but it suggested 

that the H–2A program provided a better 

model for its industry. This commenter 

stated that ETA should establish state or 

regional rates for forestry work based on 

wages paid within the same multi-state 

regions used in the H–2A program. 

Alternatively, it suggested that ETA 

could establish larger geographical 

regions that follow the seasonal 

migratory patterns for forestry-related 

work: A Northeast Region, a Midwest 

and Great Lakes Region, a Pacific and 

Northwest Region, a Southwest Region, 

and a Southern Region. As a second 

possible alternative to the existing 

system, the commenter advocated the 

use of an average state-wide wage to 

avoid the wide divergence in rates from 

one particular local area of employment 

to another. 

d. Other Comments 

An individual commenter in the 

public sector stated that the use of skill 

levels, where level one becomes the 

default level for H–2B workers, could 

have an adverse effect on U.S. workers. 

At the same time, the commenter 

expressed concern that the use of the 

OES mean rate—without regard to 

skill—could lead to workers with 

different skills and education receiving 

the same level of pay. As an example he 

chose the OES ‘‘Construction Managers’’ 

category, which groups construction 

foreman and job superintendent, 

positions that in his view both required 

job experience but only one of which 

(job superintendent) required a college 

degree. The commenter suggested that 

each position likely would receive the 

same H–2B rate of pay, despite the 

different educational requirements for 

the two positions. He suggested that the 

use of some tiers, but not necessarily 

four, would be more appropriate than 

using the OES mean. 

Another individual commenter 

suggested that ETA create a two-tiered 

system based on the percentage 

differences between the average wage 

issued for a position in fiscal years 2011 

and 2012 and the mean wage for that 

position. He characterized his approach 

as follows: ‘‘Wage Tier 1 = the mean of 

the lowest 1⁄3 of the wages reported. 

Wage Tier 2 = the mean of the top 2⁄3

of wages reported.’’ 

Some commenters, including a group 

of employers, employer agents, lawyers 

and economists, criticized DOL’s 

reading of the court’s order in CATA II 

to require the OES mean wage. This 

group claimed that the use of the OES 

mean is not required by CATA II; in its 

view, the decision only required DOL to 

stop using the skill levels that the Office 

of Foreign Labor Certification (OFLC) 

had long been using. Two associations 

of H–2B employers asserted that the 

Departments presented no evidence that 

H–2B workers occupy positions where 

similarly employed U.S. workers are 

actually paid the mean OES wage. They 

also asserted that DOL does not apply 

the arithmetic mean for wage 

determinations in its other labor 

certification programs. 

4. Decision To Retain the Mean Wage 

When Issuing a Prevailing Wage Based 

on the OES 

After reviewing the use of the OES 

survey in setting the prevailing wage in 

the H–2B program, including 

consideration of all the comments 

received on the 2013 IFR, the 

Departments have decided to continue 

to set the prevailing wage at the mean 

wage of all workers in the occupation in 

the area of intended employment when 

the prevailing wage is based on the OES 

survey. As discussed in the preambles 

to the 2010 NPRM, the 2011 Wage Rule, 

and the 2013 IFR, it remains our view 

that the OES mean better protects U.S. 

workers from adverse effect than the 

tiered-wage approach used previously 

in the H–2B program. 

A basic principle of supply-anddemand theory in economics is that in 

market economies, shortages signal that 

adjustments should be made to maintain 

equilibrium. Therefore, if employers 

experience a shortage of available 

workers in a particular region or 

occupation, compensation should rise 

as needed to attract workers. Market 

signals such as labor shortages that 

would normally drive wages up may 

become distorted by the availability of 

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Federal Register / Vol. 80, No. 82 / Wednesday, April 29, 2015 / Rules and Regulations 24159 

31 In light of the CATA II holding and the findings 

by the DOL on which it is based, we concluded that 

a return to the four-tiered approach was not 

feasible. 

32See BLS, ‘‘How much could I be earning? Using 

Occupational Employment Statistics data during 

salary negotiations’’ (2014), http://www.bls.gov/oes/ 

earnings.pdf; BLS, ‘‘Measuring the distribution of 

wages in the United States from 1996 through 2010 

using the Occupational Employment Survey’’ 

(2014). http://www.bls.gov/opub/mlr/2014/article/

measuring-the-distribution-of-wages-in-the-unitedstates-from-1996-through-2010-using-theoccupational-employment-survey-1.htm; BLS, 

‘‘How Jobseekers and Employers Can Use 

Occupational Employment Statistics (OES) Data 

during Wage and Salary Discussions’’ (2010), 

http://www.bls.gov/oes/highlight_wage_

discussions.pdf; Krista Sunday and Jordan Pfuntner, 

‘‘How widely do wages vary within jobs in the same 

establishment?’’ (2008), http://www.bls.gov/opub/

mlr/2008/02/art2full.pdf; Charles Brown, et. al., 

‘‘The Employer Size-Wage Effect’’ (1989), http://

unionstats.gsu.edu/8220/Brown-Medoff_Wage-Size_

JPE_1989.pdf; John Buckley, ‘‘Wage differences 

among workers in the same job and establishment’’ 

(1985), http://stats.bls.gov/opub/mlr/1985/03/

art2full.pdf. 

foreign workers for certain occupations, 

thus preventing the optimal allocation 

of labor in the market and dampening 

increased compensation that should 

result from the shortage. In enacting the 

foreign worker programs, generally, 

Congress has recognized the potential 

for market distortion by requiring in 

labor certification programs generally 

that the availability of foreign workers 

must not adversely affect the wages and 

working conditions of U.S. workers. 

See, e.g., 8 U.S.C. 1182(a)(5)(A)(i)(II), 

INA section 212(a)(5)(A)(i)(II); 8 U.S.C. 

1188(a)(1)(B), INA section 218(a)(1)(B). 

In its long-standing regulations, DHS 

has required this showing for the H–2B 

program. See, e.g., 8 CFR 

214.2(h)(6)(iii)(A). 

As in 2010 and 2013, we considered, 

but ultimately rejected, reinstituting a 

tiered wage system for H–2B 

employment.31 We have revisited the 

question whether we should return to 

the practice used between 1995 and 

2008, in which DOL employed a twotiered system composed of an ‘‘entry 

level’’ and an ‘‘experienced level’’ wage 

as an alternative to the OES mean. 

However, we conclude that such an 

approach would not adequately protect 

the wages and working conditions of 

U.S. workers. This position is informed 

by DOL’s prior conclusion that ‘‘there 

are no significant skill-based wage 

differences in the occupations that 

predominate in the H–2B program. 

. . .’’ 76 FR at 3460. In the 2011 Wage 

Rule, DOL analyzed 4694 wage 

determinations over a ten-month period 

in 2010, and found that 74 percent of 

the determinations were issued at Level 

I; 10.5 percent were issued at Level II; 

8.2 percent were issued at Level III; and 

6.9 percent were issued at Level IV. 76 

FR at 3468. Overall, in approximately 93 

percent of those cases analyzed 

(summing the percentage of 

determinations issued at Levels I, II and 

III), wage rates were issued for H–2B 

occupations that were below the OES 

mean for the same occupation. Based on 

those findings, DOL concluded that the 

use of skill levels adversely affected 

U.S. workers because it ‘‘artificially 

lowers [wages] to a point that [they] no 

longer represent[ ] a market-based wage 

for that occupation[,]’’ and that ‘‘the net 

result is an adverse effect on the [U.S.] 

worker’s income.’’ 76 FR at 3463; see 

also 75 FR 61578, 61580–81. Similarly, 

the preamble to the 2013 IFR stated that 

the OES mean is the appropriate wage 

level because almost all H–2B jobs 

involve unskilled occupations requiring 

few or no skill differentials. 78 FR at 

24053. The 2013 IFR reiterated the 

conclusion that ‘‘there was no 

justification for stratifying wage levels 

to artificially create wage-based skill 

levels when in fact there is no great 

difference in skill levels with which to 

stratify the job.’’ Id. 

DOL continues to see the pattern 

identified in 2011, in which Level I 

wages (approximately the 17th 

percentile) predominate where a tiered 

wage structure is in place. DOL 

conducted a fresh analysis for this rule 

of the frequency with which the former 

Level I wages occur in prevailing wage 

determinations under a tiered wage 

structure. In a statistically significant 

random sample of 472 wage 

determinations issued in FY 2012, 

before implementation of the IFR, DOL 

found that 344 determinations, or 72.88 

percent of the sample, were issued at 

Level I; 68 wage determinations, or 

14.41 percent of the sample, were issued 

at Level II; 41 wage determinations, or 

8.69 percent of the sample, were issued 

at Level III; and 19 wage determinations, 

or 4.03 percent of the sample, were 

issued at Level IV. As a result, 

approximately 96 percent of the wage 

determinations analyzed in the 2012 

sample (summing the percentage of 

determinations issued at Levels I, II and 

III) were below the OES mean wage. 

Based on this analysis, DOL remains 

convinced that when tiered wages are 

available and the tiers are set below the 

mean, the average wage of workers in 

the occupation is driven down, resulting 

in an adverse effect on U.S. workers’ 

wages caused by the influx of foreign 

workers. 

Moreover, a tiered approach in the H– 

2B program has been an inadequate 

proxy for skill or other characteristics 

associated with wages, thereby 

discrediting comments on the 2013 IFR 

suggesting that any variation in wage 

payments when tiers are in place 

reflects remuneration for relative skill or 

proficiency. These commenters argued 

that if the premise that there are a few 

or no skill differences in H–2B work 

were accurate, we would not see the 

range of wages, and the dispersal away 

from the mean, that can be observed on 

an H–2B wage distribution. The wage 

differential, they say, must reflect a skill 

differential. However, many more 

factors can account for the H–2B wage 

differential than skill level. The 

literature reflects that there are factors 

in addition to skill level that can 

account for OES wage variation for the 

same occupation and location, which 

include, but are not limited to: Size of 

employer; seniority; rate of worker 

turnover; union status; gender, race, 

ethnicity, or nationality; work hour 

schedule; age; availability of benefits in 

the form of training opportunity, health 

insurance, paid time off, and other 

benefits; sub-location within the same 

area of intended employment; and pay 

structure (performance-based pay vs. 

fixed pay per hour).32

In the absence of a tiered wage 

system, the Departments must assign 

prevailing wages in the H–2B program 

in a manner in which does not depress 

wages for U.S. workers because of the 

artificially elevated labor supply in the 

market. Thus, we must identify the 

point on the OES wage distribution that 

protects the wages of U.S. workers from 

the depressive effect of the influx of 

surplus labor. In 2011 and in 2013, DOL 

concluded that the mean was that point 

(76 FR at 3462; 78 FR at 24053), and we 

rely on that same finding following 

public comment for the purposes of this 

final rule. The mean is the average of all 

wages surveyed in an occupation in the 

geographic area, and in the low-skilled 

occupations in the H–2B program, the 

mean represents the average wage paid 

to unskilled workers to perform that job. 

If the prevailing wage is set below the 

mean, the average wage of workers in 

the occupation would be drawn down, 

resulting in a depressive effect on U.S. 

workers’ wages overall. In addition, we 

have set the wage rate at the mean rather 

than at the median because the mean 

provides equal weight to the wage rate 

received by each worker in the 

occupation across the wage spectrum 

and maintaining the OES mean provides 

regulatory continuity. As a result, when 

the prevailing wage is based on the OES 

survey, we will set it at the mean 

because it is the most appropriate wage 

to use in order to avoid immigrationinduced labor market distortions 

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24160 Federal Register / Vol. 80, No. 82 / Wednesday, April 29, 2015 / Rules and Regulations 

inconsistent with the requirements of 

the INA. 

For all these reasons, we have not 

returned to a tiered system as a basis for 

setting the prevailing wage for H–2B 

workers. We recognize that the use of 

the OES mean, rather than the use of 

tiered wages, has in some cases resulted 

in an increase in the wages paid to H– 

2B workers, which may result in overall 

increases in labor costs for some U.S. 

businesses that employ H–2B workers. 

The Departments also recognize that the 

use of the OES mean may impose 

particular burdens on small businesses. 

However, DOL is obligated to set a 

prevailing wage that protects all U.S. 

workers from adverse effect; this 

requirement could not be met by setting 

a lower wage for small businesses. In 

addition, most H–2B employers now 

have experience paying workers at the 

OES mean, which was established in the 

H–2B program two years ago. DOL 

concludes that the impact on small 

businesses of having to pay the OES 

mean wage will be less than that 

incurred under the 2013 rule, given that 

employers have been able since then to 

base projections of future labor costs on 

these wage rates. As discussed above, 

DOL concludes that use of the OES 

mean best meets the Departments’ 

obligation to protect against adverse 

effect, while setting the prevailing wage 

at a threshold based on artificial skill 

levels likely distorts the labor market for 

U.S. workers, driving down wages. 

B. Use of the SCA and DBA as Wage 

Sources in H–2B Prevailing Wage 

Determinations 

1. History of the SCA and DBA 

Prevailing Wage Determinations in the 

H–2B Program 

DOL historically relied on the 

prevailing wage regulations used for 

permanent labor certifications in the 

immigrant labor program, as codified at 

20 CFR 656.40, to determine prevailing 

wages in the H–2B program. Versions of 

section 656.40(a)(1) that pre-date 2005 

set wage rates at the levels mandated by 

the DBA and the SCA ‘‘if the job 

opportunity is in an occupation which 

is subject to a wage determination’’ in 

the area of intended employment under 

either statute. As a result, before 2005, 

if an H–2B job fell within an occupation 

for which an SCA or DBA wage 

determination had been issued in the 

area of intended employment, that wage 

rate became the H–2B prevailing wage, 

even in cases in which the OES survey 

may have identified a wage for a 

comparable occupation. DOL 

abandoned this approach in the same 

2005 guidance that introduced skillbased tiered wages, which gave 

employers the option to request the SCA 

or DBA prevailing wage determination, 

but did not mandate its application. See 

2005 PWD Guidance. The H–2B rule 

issued in 2008 similarly permitted, but 

did not require, use of the SCA and DBA 

prevailing wage determinations. 73 FR 

78020. As a result, under the 2008 rule 

DOL set the prevailing wage as: The 

collective bargaining agreement (CBA) 

wage rate; the OES four-tier wage rate if 

there was no CBA; an acceptable survey 

provided at the employer’s election; or 

a wage rate under DBA or SCA at the 

employer’s request, if one was available 

for the occupation in the area of 

intended employment. See 20 CFR 

655.10 (2009). In the absence of a CBA 

wage, the employer could elect to use 

the applicable SCA or DBA wage in lieu 

of the OES wage. Id. 

In DOL’s 2010 H–2B Wage NPRM, 

DOL proposed revisions to the wage 

methodology that set the prevailing 

wage as the highest of: The OES 

arithmetic mean wage for each 

occupational category in the area of 

intended employment; the applicable 

SCA/DBA wage rate (if one was 

available); or the CBA wage. 75 FR 

61578 (Oct. 5, 2010). This approach was 

finalized in 2011, 76 FR 3452, although 

never implemented as a result of 

Congressional riders, as discussed 

above. Because the riders prevented 

implementation of the 2011 ‘‘highest of’’ 

approach, DOL continued to use the 

approach in the 2008 rule, which 

permitted employers to request 

prevailing wages based on the SCA and 

DBA, if applicable and available. 

The 2013 IFR retained the 

‘‘employer’s option’’ approach. 78 FR 

24047. The preamble to the IFR 

explained that ‘‘although there are 

various ways to define or calculate the 

prevailing wage rate, [DOL concludes] 

that, under the present circumstances in 

which we must act expeditiously in 

response to the CATA II order, the use 

of any of these three wage rates [the OES 

mean, the SCA or the DBA] will serve 

to meet DOL’s obligation to determine 

whether U.S. workers are available for 

the position and that the employment of 

H–2B workers will not adversely affect 

U.S. workers similarly employed.’’ 78 

FR at 24054. 

2. Comments on the 2013 IFR’s Use of 

the SCA and DBA Wage Determinations 

to Set the Prevailing Wage 

The 2013 IFR sought ‘‘comment on 

the use of the DBA and the SCA in 

making prevailing wage determinations, 

and if these wage rates should apply, to 

what extent.’’ 78 FR at 24054 (emphasis 

added). We identified three ways in 

which we could continue to incorporate 

DBA and SCA wage determinations in 

the H–2B program if we elected to use 

those wage sources: (1) Applying the 

DBA or SCA wage determinations if 

they represent the highest available 

prevailing wage determination for the 

job opportunity in question (the 2011 

approach); (2) making the SCA and DBA 

wage determinations available to the 

employer if it chooses to rely on them 

for that job opportunity, regardless of 

whether the wage is the highest or 

lowest available (the 2008 Rule and 

2013 IFR approach); and (3) in the 

absence of a CBA wage, mandating use 

of the SCA or DBA wage determination 

applicable to that job opportunity (the 

pre-2005 approach). Id. 

As a general matter, many worker 

advocates supported the mandatory 

application of SCA and DBA prevailing 

wage determinations where they are 

available for the occupation in the area 

of intended employment for which 

certification is being sought. These 

commenters often argued that the SCA 

and DBA wage determinations were the 

most complete and accurate measure of 

appropriate compensation levels for the 

occupations covered by those statutes in 

the geographic areas for which such 

wage rates have been determined. Many 

such commenters argued in favor of 

DOL’s pre-2005 approach in which the 

SCA and DBA wage determinations 

must be used where applicable to the 

job in the area of intended employment. 

However some commenters did not 

clearly state whether they advocated for 

use of the SCA and DBA wage 

determinations in the H–2B program as 

part of the unimplemented 2011 

‘‘highest of’’ methodology, in which 

SCA and DBA wage determinations are 

used only if they are higher than the 

OES mean and/or a CBA wage. 

Similarly, many employers and 

employer associations advocated in 

favor of the approach in the 2008 rule, 

but did not identify whether this 

preference was specifically tied to the 

2008 rule’s voluntary use of the SCA 

and DBA wage determinations, or 

whether it reflected a preference for the 

four-tiered OES structure over the OES 

mean. In addition, many of the same 

commenters suggested that, in the event 

we do not employ the 2008 rule’s 

voluntary use of the SCA and DBA wage 

determinations, we should adopt the 

2005 guidance, which mirrors the 2008 

rule’s employer election to use SCA or 

DBA wage determinations. Many 

commenters also suggested that the 

Departments adopt the wage standards 

set out in S. 744, as alternative 

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33See Sec. II.A., supra, for the text of the wage 

provision in S. 744. 

34This commenter relied on the comment it had 

submitted for consideration during the 2011 Wage 

Rule proceeding. In the preamble to the 2011 Wage 

Rule, DOL rejected the proposal to establish 

regional prevailing wage rates for reforestation, 

explaining that an employer can avoid the 

complexity of paying various wage rates where 

projects stretch across multiple counties or states 

with different wage rates by paying the highest of 

the prevailing wages of those areas, which is similar 

to paying a regional wage, particularly because 

‘‘[p]revailing wage rates for forestry work are 

generally the same across contiguous counties—and 

frequently noncontiguous counties—in the same 

State.’’ 76 FR 3452, 3464. In addition, DOL 

concluded that it ‘‘is not feasible or desirable to 

establish regional wage rates for particular 

industries in the H–2B program’’ because the wage 

rates must be locality-based in order to prevent 

adverse effect on U.S. workers. Id. We reiterate that 

conclusion in this rulemaking as well. 

35As noted above, an employer in the forestry 

industry articulated a similar point in advancing a 

preference for the SCA over the OES to set the 

prevailing wage for forestry occupations. However, 

no other comments singled out any other particular 

industry or occupation to which the SCA was better 

suited to set the prevailing wage. 

acceptable wage methodologies.33 With 

respect to the SCA and the DBA, these 

commenters appear to suggest that S. 

744’s reliance on the use of the ‘‘best 

available information’’ to set the 

prevailing wage indicates that the SCA 

and DBA wage determinations should 

be used only when those wage 

determinations independently apply to 

the work the relevant H–2B employees 

will perform, i.e., when H–2B personnel 

perform work under a Government 

contract subject to the statutes. 

One employer who is an extensive 

user of the H–2B program suggested that 

the SCA is a more appropriate ratesetting device for forestry occupations 

than is the OES because of the OES’s 

single category of forestry worker, rather 

than the SCA’s three categories. This 

commenter submitted that for forestry 

workers, the OES artificially inflates the 

wages of lower paid, manual labor-type 

forestry work and suggested that the 

SCA’s use of three categories better 

recognizes the distinction between 

forestry work that requires solely 

manual labor and skilled forestry work 

performed by college graduates. This 

commenter further suggested that, with 

respect to the ‘‘range of’’ forestry-related 

occupations, the Departments should 

issue ‘‘regional’’ SCA rates as well as a 

‘‘regional’’ OES wage rate with four skill 

levels, from among which an employer 

could select its preferred option.34

Employers in the seafood processing 

industry asserted that the SCA and DBA 

job classifications (as well as the OES/ 

SOC classifications) did not reflect well 

the production-based jobs in the seafood 

industry. 

An association of contractors 

criticized the DBA wage determinations. 

This commenter argued that DBA rates 

are ‘‘grossly inflated’’ due to the 

‘‘unscientific methodology’’ used to 

create them, and underscored that the 

surveys used to collect the information 

for the DBA wage determination are 

voluntary. As a result, this commenter 

suggested that labor organizations and 

large government contractors 

disproportionately submit the required 

data, resulting in wage determinations 

that are inconsistent with the actual 

prevailing wage rates. This comment 

also suggested that the system of 

deferring to the local area practice in 

defining the job duties of a particular 

classification makes it ‘‘difficult to 

determine the appropriate wage rate for 

many construction-related jobs.’’ 

We received virtually identical 

submissions from a dozen worker 

advocacy groups who advocated that 

DOL return to the pre-2005 approach, 

which required the use of the SCA or 

DBA wage determinations if the job 

opportunity was in an occupation 

subject to a wage determination in the 

area of intended employment under 

either statute. Most of the entities 

submitted the same statement advancing 

this position, expressing the view that 

the SCA and DBA wage rates ‘‘are the 

most complete and accurate measure of 

determining appropriate compensation 

levels for the occupations covered by 

those Acts in those geographic areas for 

which such wage rates have been 

determined’’ and asked that SCA and 

DBA wage rates be required in all 

circumstances in which they were 

available. The commenter further noted 

that requiring the use of SCA and DBA 

wage rates wherever available would be 

consistent with DOL’s approach prior to 

2005. 

Moreover, as discussed above 

regarding the use of the OES mean to set 

the prevailing wage, a comment 

submitted by a worker advocacy project 

on behalf of a large consortium of 

worker groups underscored the view 

that the SCA wage determinations are 

particularly apt in the forestry and 

logging occupations because they are 

more ‘‘closely tailored’’ to the jobs and 

the SCA ‘‘classification includes many 

jobs that demand more knowledge, 

training and experience and pay higher 

wages.’’ 35 This comment, which was 

joined by a number of other advocacy 

organizations, discussed alternative 

approaches depending upon Job Zone. 

The comment suggested that the OES 

mean should ‘‘at all times’’ be the 

prevailing wage for Job Zone 1 jobs, 

unless there was a higher CBA, SCA or 

DBA rate, and that the OES mean 

‘‘should generally be used to determine 

the prevailing wage rate’’ for Job Zone 

2 and 3 occupations. However, the 

comment also recommended that the 

SCA should be used for forest and 

conservation workers (citing specifically 

SOC Code 45–4011, ‘‘Forest and 

Conservation Workers,’’ classified as 

Zone 3 in O*NET) because the 

commenter suggested that the SOC 

occupations for these jobs include both 

jobs that require little to no preparation 

and those that require more knowledge 

and training. 

As discussed in the OES section 

above, the same comment also suggested 

that if there were additional occupations 

beyond forestry for which many H–2B 

certifications were issued that were 

grouped in an SOC code with other 

occupations requiring different levels of 

preparation, DOL should develop new 

sub-codes using the O*NET system. 

Pending the development of these subcodes, the comment asked that DOL use 

a case-by-case method to determine the 

appropriate wage rate. For Job Zones 4 

and 5 (occupations requiring 

considerable preparation and 

occupations requiring extensive 

preparation), the group suggested the 

OES mean should be the presumed rate 

absent strong evidence to the contrary. 

The commenter discussed the use of 

O*NET Job Zones where the SOC code 

includes a mix of jobs and some require 

substantially more preparation than 

others, and concluded that O*NET subclassifications should be created for any 

Job Zones 2 and 3 jobs that require 

mixed levels of skills and training ‘‘to 

permit a separate treatment of lower 

skilled jobs in a SOC class appropriately 

to reflect actual wage differences based 

upon the real differences in the training 

and skills needed to do the job.’’ The 

comment again emphasized that 

classifying H–2B forest and 

conservation workers in a Job Zone 3 

classification ‘‘is misleading as to the 

actual job duties performed for the 

positions certified for H–2B workers,’’ 

so they again recommended using SCA 

wage rates for such workers. They also 

identified other H–2B jobs that fall 

within Job Zone 3, and stated that many 

of them may be appropriate, but that 

there may be circumstances where the 

H–2B jobs ‘‘do not require Zone 3 levels 

of experience and training, similar to 

forestry. In cases where this is 

identified, if there are SCA or Davis 

Bacon rates that apply, they should be 

used.’’ If not, they again recommended 

creating sub-classifications and using ad 

hoc adjudication to set rates in the 

meantime. 

An individual commenter stated that 

the U.S. workers would be adversely 

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36The current 5th edition of the SCA Directory 

was published on April 17, 2006, and can be 

accessed at http://www.dol.gov/whd/regs/

compliance/wage/SCADirV5/SCADirectVers5.pdf. 37See http://www.wdol.gov/dba.aspx. 38See Foreign Labor Certification Data Center 

Online Wage Library, available at http://

www.flcdatacenter.com/. 

39For example, in the SCA Directory, a General 

Forestry Laborer, code 08520, may, among other 

things, sow seeds and lift seedlings, and hand scalp 

the seedlings. A Brush/Precommercial Thinner, 

SCA code 08010, may use a chainsaw, brush blade, 

or other hand-held equipment to remove excess 

trees and other vegetation. Finally, a Tree Planter, 

SCA code 08370, may plant trees using shovels or 

hoes, but may perform only part of the tree planting 

functions, while a Tree Planter, Mechanical, SCA 

code 08400, would complete the planting process 

using a mechanical planter. Although these tasks 

are all related, they are separated into different 

occupations in the SCA directory, with separate 

prevailing wages. Under the OES/SOC system, 

however, these tasks could all be captured under 

the same SOC code, 45–4011—Forest and 

Conservation Workers, which applies to workers 

who perform manual labor necessary to develop or 

protect forest areas, and includes forest aides, 

seedling pullers, and tree planters. These workers 

may cut trees, thin trees using saws, plant trees, or 

sow and harvest crops such as alfalfa. 

40By contrast, SCA and DBA implementing 

regulations allow contractors to compensate 

employees at the rate specified for each 

classification in the applicable wage determination, 

provided they maintain payroll records accurately 

reflecting the hours spent working at each of the 

jobs. See 29 CFR 4.169 (SCA); 29 CFR 5.5(a)(1)(i) 

(DBA). 

affected if the regulations ‘‘retain the 

component of the 2008 final rule that 

permits, but does not require, an H–2B 

employer to use . . . DBA or SCA wage 

determinations.’’ Finally, a federation of 

labor organizations suggested that 

‘‘[w]here the DOL has already calculated 

a prevailing wage rate under the DBA or 

SCA in order to ensure that wages for 

currently-employed workers are not 

adversely affected, it would border on 

irrational for the agency to ignore such 

a wage determination when setting a 

prevailing wage rate for workers 

employed in the H–2B program.’’ We 

considered all the comments addressing 

the use of the SCA and DBA wage 

determinations to set the prevailing 

wage, as well as the DOL’s historical 

practice, and its current procedures. 

3. ETA’s Process for Determining the 

Prevailing Wage Based on the SCA or 

DBA 

ETA used the following process to 

issue prevailing wage determinations 

under the 2008 rule, as modified at 20 

CFR 655.10(b)(2) by the 2013 IFR. ETA 

issued a prevailing wage determination 

for a specific job performed in a specific 

geographic area. In order to do so, H– 

2B jobs or tasks were structured into 

occupational titles. These occupations 

were catalogued in taxonomies, which 

established how the occupations were 

defined, organized and presented. 

Taxonomies would vary depending on 

the wage survey used. For example, as 

discussed above, when conducting the 

OES survey, BLS surveys of workers’ 

wages are based on the 2010 SOC 

system, which contains 840 detailed 

occupations, each one of which has its 

own definition. Detailed occupations in 

the SOC with similar job duties, and in 

some cases skills, education, and/or 

training, are grouped together to form 

461 broad occupations, 97 minor 

groups, and 23 major groups. The SOC 

classifies all occupations in the 

economy, including private, public, and 

military occupations, in order to 

provide a means to compare 

occupational data produced for 

statistical purposes across agencies. It is 

designed to reflect the current 

occupational work structure in the U.S. 

and to cover all occupations in which 

work is performed for pay or profit. 

By contrast, the Wage and Hour 

Division (WHD) employs the SCA 

Directory of Occupations (SCA 

Directory), which classifies occupations 

for the purposes of issuing SCA 

prevailing wage determinations.36 The 

SCA Directory provides a list of 

occupations with accompanying 

position descriptions. The current 

edition of the directory contains 408 

occupations, of which 339 are 

‘‘standard’’ occupations applicable to 

both metropolitan and non-metropolitan 

areas; the remaining 69 are ‘‘nonstandard’’ occupations. The DBA 

prevailing wage determinations are 

based on a third and separate 

occupational taxonomy, which, rather 

than relying on general task descriptions 

for each occupation, is defined 

according to local practice.37 As a result, 

under the DBA, occupations with 

similar tasks may have different 

occupational titles based on variations 

in local area practice. 

Although WHD is the agency 

responsible for the administration and 

enforcement of the SCA and DBA, all 

prevailing wage determinations 

requested through the H–2B program, 

regardless of whether the wage source is 

the OES, the SCA or the DBA, were set 

by ETA’s National Prevailing Wage 

Center (NPWC). In order to issue a 

prevailing wage determination for a 

position requested in the H–2B program, 

the NPWC needed to first match the job 

duties identified on the employer’s 

request for a prevailing wage, Form 

9141, to an occupational title for which 

a prevailing wage determination exists. 

On the Form 9141, the employer 

requested a wage for an H–2B job that 

the employer identified by both SOC 

code and by the job’s duties and tasks. 

For all prevailing wage requests, the 

NPWC assessed the employer’s job 

description, checked the employer’s 

submitted SOC code against the job 

description, and determined the most 

accurate SOC code for the position. If 

the prevailing wage was based on the 

OES survey, which is keyed to the SOC 

system, the NPWC found the SOC 

occupation on its online wage library 38

and assigned the OES wage. However, 

where the employer requested a 

prevailing wage based on the SCA or the 

DBA, the NPWC not only matched the 

employer’s job description to an SOC 

occupation, but also conducted the 

same matching process to find the 

appropriate occupational title in the 

SCA directory or the DBA online tool. 

Although there is some overlap in the 

occupational titles and descriptions, the 

SOC, the SCA and DBA taxonomies can 

vary in ways that are challenging in 

setting the prevailing wage. The 

occupations contained in the SCA 

Directory and the DBA taxonomies are 

often defined more narrowly than are 

the corresponding occupations in the 

SOC system.39 Furthermore, there may 

not be a corresponding SCA or DBA 

wage for every SOC code because the 

classifications included in SCA and 

DBA prevailing wage determinations are 

not always as comprehensive as the 

SOC code. As a result, this matching 

process required NPWC analysts to 

exercise professional judgment in 

determining whether an occupational 

taxonomy contains a particular title 

applicable to the employer’s job 

description, and which occupation in 

the applicable taxonomy most closely 

resembled the position requested by the 

employer on the Form 9141. 

Often, the job duties listed on a Form 

9141 requesting an SCA or DBA wage 

either did not correspond to the job 

duties of the occupational classification 

in the SCA and DBA systems, or 

contained a combination of duties that 

cross one or more occupational titles, 

while the work performed under an H– 

2B job order ordinarily fits within a 

single SOC. In the former case, where 

the duties described by the employer 

were incompatible with the duties in an 

occupation within the relevant SCA or 

DBA wage determination, the NPWC 

would issue a default OES-based 

prevailing wage determination. In the 

latter case, where the duties described 

by the employer crossed occupational 

titles, the NPWC would issue a 

prevailing wage that is the highest wage 

of the SCA or DBA occupations 

encompassing the employer’s job 

duties.40 See 2009 Guidance at 4. 

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41See SCA and DBA Conformance Processes, 

available at http://www.dol.gov/whd/recovery/

pwrb/Tab7SCACnfrmncPrcss.pdf; 29 CFR 5.5(a)(ii) 

and http://www.wdol.gov/aam/aam213.pdf. 

42The SCA and DBA wage rates will remain in 

force and effect for all workers, including H–2B 

workers, who perform work on government 

contracts, but under this rule, the SCA and DBA 

wage determinations will not be used as wage 

sources to set the prevailing wage in the H–2B 

program. Therefore, when an H–2B employer with 

an SCA or DBA contract requests a prevailing wage 

from ETA’s National Prevailing Wage Center, the 

NPWC will give the employer a prevailing wage 

based on the OES survey, with a reminder, as is 

currently issued, that the employer must comply 

with all applicable wage obligations. As is the case 

now, this obligation to comply with all applicable 

wage standards effectively results in the obligation 

to pay the highest legally applicable wage (i.e., the 

SCA, DBA, the OES mean, or state or local 

minimum wages) regardless of the prevailing wage 

determination issued by OFLC. 

43By contrast, the SCA and DBA systems, when 

administered by WHD for the purpose of 

application to government contracts, create 

considerably less economic incentive to tailor job 

descriptions because the contracting agency 

specifies job duties for the purposes of a 

government contract based upon the work to be 

performed, without regard to profit maximization. 

By contrast, when an SCA- or DBAcovered contract requires the 

performance of work for which the 

applicable wage determination contains 

no corresponding classification, the 

WHD engages in a conformance process 

to determine what the appropriate 

prevailing wage should be for the 

unlisted, relevant occupation. This 

generally entails identifying a wage rate 

that is reasonable in relationship to the 

wage rates of listed occupations in the 

applicable wage determination. 29 CFR 

4.6(b)(2).41 It would not be feasible to 

adopt such procedures for the H–2B 

program because the conformance 

process generally takes longer than is 

compatible with NPWC’s obligation to 

set an accurate prevailing wage rate in 

time for an employer to recruit U.S. 

workers at the appropriate prevailing 

wage. 

Finally, once the proper occupational 

title was identified, a similar matching 

process needed to occur to determine 

the proper area of intended 

employment. In the DBA context, 

however, the area of intended 

employment might determine not just 

the appropriate wage, but also the title 

and description of the job itself, because 

the DBA taxonomy varies from area to 

area and is determined by local area 

practice. Issuing a DBA prevailing wage 

determination thus required the NPWC 

to match the Form 9141 tasks to a 

specific job taxonomy for every area of 

intended employment. 

4. Decision Not To Allow Use of SCA 

and DBA Wage Determinations in the 

H–2B Program 

In the 2013 IFR, the Departments 

asked whether and to what extent SCA 

and DBA wage determinations should 

be used in the H–2B program. 78 FR at 

24054. This request for input reflected, 

in part, DOL’s past practice of using the 

SCA and DBA wage determinations in 

the H–2B program in a variety of ways, 

and whether those methods effectively 

served our obligation to prevent against 

adverse effect to the wages of U.S. 

workers. Our previously varied use of 

the SCA and DBA wage determinations 

to set the H–2B prevailing wage 

included relying on them as the sole, 

mandatory source for determining the 

prevailing wage before 2005, allowing 

their use at the employer’s discretion in 

2008, and requiring their use if they 

were the highest of an array of wage 

sources in the unimplemented 2011 

wage rule. Under each of those 

scenarios, some groups strongly favored 

the approach, and others strongly 

objected. Comments on this subject in 

response to the 2013 IFR generally 

reflected the same divergence of 

opinion, with some groups favoring the 

mandatory use of the SCA and DBA 

wage determinations, others favoring 

only their discretionary use, and still 

others favoring their use only where the 

wage determinations were higher than 

the OES mean. In considering the 

competing interests of the regulated 

community with respect to using the 

SCA and DBA wage determinations to 

set the H–2B prevailing wage, the 

Departments’ challenge is to protect 

against adverse wage effects resulting 

from the importation of foreign workers, 

establish a policy that promotes 

regulatory stability, and address the 

administrative challenges in conforming 

the SCA and DBA wage determinations 

in the H–2B program. Our decision, as 

outlined below, reflects these 

considerations. 

This rule does not provide the option 

to request, for purposes of the H–2B 

program, a prevailing wage 

determination under the SCA or the 

DBA. The decision will result in the use 

of the SOC-based OES as the basis for 

all prevailing wage determinations in 

the H–2B program, unless an employer 

has a CBA or meets one of the 

conditions that would permit the 

submission of an employer-provided 

wage survey as discussed, infra, in Sec. 

II.C. In making this decision, we 

underscore that the SCA and DBA wage 

determinations remain the only 

appropriate wage sources for 

establishing the prevailing wages for use 

in the federal contracts to which they 

apply. However, for the reasons that 

follow, we are not allowing the use of 

the SCA and DBA prevailing wage 

determinations in the H–2B program, 

and the regulatory text that follows 

reflects that the option to use the SCA 

or DBA wage determinations as a source 

for an H–2B prevailing wage is not 

available. Thus, subsection (b)(5) in the 

2008 rule does not appear in 20 CFR 

655.10 of this final rule. This decision 

will have no impact on the independent 

statutory requirements imposed by the 

SCA and DBA on any employers 

employing H–2B or non-H–2B workers 

on a federal government contract 

covered by those statutes.42

a. Challenges Conforming the SCA and 

DBA Prevailing Wage Determinations to 

the H–2B Program 

Our decision not to allow the use of 

the SCA and DBA wage determinations 

for establishing prevailing wage rates in 

the H–2B program is based largely on 

DOL’s challenges conforming the SCA 

and DBA taxonomies and wage 

determinations to requests for prevailing 

wages in the H–2B program, including 

to avoid the potential for inconsistent 

prevailing wage determinations in the 

H–2B program. The substantial 

distinctions between the SOC system 

and the SCA and DBA occupation 

taxonomies, as discussed above, make 

the tasks of issuing and enforcing SCA 

and DBA prevailing wages in the H–2B 

program more complex than necessary 

to assure that U.S. workers experience 

no adverse wage effects when foreign 

workers are employed on a temporary 

basis. 

As noted above, the SCA and DBA 

classifications are defined more 

narrowly than those in the SOC system, 

and job duties captured by an SOC 

occupation often span two or more 

applicable occupational titles in the 

SCA and DBA. Because the NPWC 

assigned the prevailing wage from the 

occupation with the higher wage in 

those cases where the employer’s job 

duties cross more than a single SCA or 

DBA occupation, employers had an 

economic incentive to tailor their job 

descriptions on the Form 9141 to fit 

within the lower-paid occupational 

title.43 The NPWC’s experience has 

shown that in mixed-occupation cases 

in which it has issued an SCA 

prevailing wage determination and 

assigned the higher prevailing wage, it 

was not uncommon for the same 

employer to submit a new Form 9141 

for the same job, and revise the job 

duties to conform to the lower-paying 

SCA occupation. In such circumstances, 

the NPWC then issued the lower wage 

because the new Form 9141 request 

then conformed to a single SCA or DBA 

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44The BALCA consists of Administrative Law 

Judges assigned to DOL and designated to be 

members of BALCA, and decides immigrationrelated administrative appeals. 20 CFR 655.4. 

45As we explain more fully in Sec. II.C., infra, 

DOL will accept an employer-provided survey 

under very limited conditions. However, where 

those conditions may be met, an SCA or DBA wage 

determination may not be submitted as an 

‘‘employer-provided survey’’ under this rule 

because of the challenges conforming the SCA and 

DBA wage determinations to the H–2B prevailing 

wage process as discussed above. If an employer 

submitted SCA and DBA wage determinations as an 

employer-provided survey, the NPWC would still 

conduct the extra analysis described above, i.e., 

analysts must align the SOC code and the job duties 

submitted by the employer to that occupation in the 

SCA or DBA taxonomy. The NPWC’s challenge in 

implementing the SCA and the DBA wage 

determinations rests not in defining the proper 

wage for an SCA or DBA occupational title—WHD 

has already accomplished this task and published 

this information—but rather in cross-walking the 

employer’s identified position to an established 

SCA or DBA occupation. By contrast, in order for 

an employer to base a request for a prevailing wage 

on an employer-provided survey, the duties of the 

occupation surveyed have likely already been 

tailored to match those in the employer’s job 

opening. Therefore, permitting the submission of 

SCA and DBA wage determinations as employeroccupation. However, if WHD later 

enforced the prevailing wage in cases 

where employees were performing job 

duties beyond the occupation assigned, 

employers might be required to pay the 

higher wage to the misclassified 

workers. But even requiring back wages 

and assessing civil money penalties 

does not provide an adequate approach, 

because no enforcement scheme can 

reach every violator. In addition, such 

relief will not typically reach potential 

U.S. applicants who may have sought 

the position if the employer had 

advertised the job with the appropriate 

wage. As a result, the incentive to craft 

job descriptions to fit the relatively 

more narrow SCA and DBA 

occupational categories thus 

compromises protections otherwise 

afforded to U.S. workers seeking to 

perform similar work in the area of 

intended employment. 

The use of SCA and DBA wage 

determinations in the H–2B program has 

never carried with it the implementing 

tools established in the SCA and DBA 

regulations, such as the ability to 

prorate mixed-duty job descriptions or 

the conformance process that 

accompanies those wage determinations 

when administered by WHD. As 

discussed above, the conformance 

process used by WHD cannot be used by 

NPWC to issue H–2B prevailing wage 

determinations because the 

conformance process generally takes 

significantly longer than the timeframe 

under which the NPWC must issue 

prevailing wages. The absence of the 

SCA and DBA regulatory structures that 

facilitate WHD’s effective 

implementation of the wage 

determinations, coupled with the 

frequent mismatch between the SOC 

occupations and the SCA and DBA 

classifications, could result in varying 

applications of the wage determinations 

between ETA and WHD. This is 

particularly true because ETA issues a 

single prevailing wage for the job 

opportunity in the H–2B program, 

while, in the SCA and DBA programs, 

multiple wage rates may apply to a 

single worker, depending on the tasks 

performed at various points during the 

job. In order to eliminate confusion 

concerning implementation of the SCA 

and DBA wage determinations, DOL 

will not rely on SCA and DBA wage 

determinations as a source for H–2B 

prevailing wage determinations. WHD is 

the agency statutorily tasked with the 

administration of the SCA and DBA, 

and has extensive experience issuing 

prevailing wage determinations in the 

specific classifications within the SCA 

and DBA, and that agency will have sole 

authority within DOL to issue a 

prevailing wage based on those wage 

determinations. Without the regulatory 

structure attendant to the SCA and DBA 

wage determinations and because of the 

misalignment in their taxonomies as 

compared to the default SOC system 

currently in use, we conclude that the 

use of those wage determinations in the 

H–2B program is not feasible, and we 

are not allowing their use as prevailing 

wage determination sources. 

The challenges noted above—the 

distinctions between the occupational 

categories under the SOC codes and 

those in the SCA and DBA and the 

absence of the same regulatory 

structures that promote effective 

implementation of those wage 

determinations—have caused 

uncertainty and confusion in the H–2B 

program, which in turn has resulted in 

complex litigation over the proper wage. 

Pacific Coast Contracting, Inc., Case No. 

2014–TLN–00012 (Board of Alien Labor 

Certification Appeals (BALCA), March 

5, 2014) illustrates the manner in which 

distinctions in occupational 

classification can create confusion and 

uncertainty for employers requesting 

SCA- and DBA-based prevailing wage 

determinations in the H–2B program. In 

that case, an employer requested and 

received two prevailing wage 

determinations under the SCA based on 

different job descriptions, one for a 

‘‘’’Brush/Precommercial Thinner’’ and 

one for a ‘‘Tree Planter.’’ The employer’s 

advertisements offered the job at a wage 

range that included both the lower and 

the higher wages from the two wage 

determinations. ETA denied the 

temporary labor certification because 

the job opportunity involved duties 

from both tree planting and precommercial thinning, and the employer 

should have offered the wage for the 

higher-paid job that encompassed all the 

duties the employer expected to be 

performed. The employer argued that 

the SCA regulation, 29 CFR 4.169, 

governed. That regulation permits 

government contractors to pay different 

wage rates to a service employee who 

performs work within more than one 

classification in a workweek, provided 

the contractors maintain payroll records 

accurately reflecting such hours. The 

Board of Alien Labor Certification 

Appeals (BALCA) properly rejected this 

argument, concluding that the ‘‘H–2B 

temporary labor certification program is 

not governed by the SCA implementing 

regulations,’’ but is governed solely by 

the H–2B regulations. Pacific Coast, 

slip. op. at 4.44 As with Pacific Coast, 

DOL has experienced an increase in 

litigation involving the misalignment of 

the employer’s job description to that in 

the SCA wage determination, and DOL 

concludes that the risk of such litigation 

and the potential for inconsistent 

prevailing wage determinations will be 

mitigated by no longer relying on the 

SCA and DBA wage determinations for 

establishing H–2B prevailing wage rates. 

The challenges identified above in 

using the SCA and DBA wage 

determinations as prevailing wage 

sources would be alleviated by relying 

solely on the SOC-based OES as the 

primary wage source for prevailing wage 

determinations in the H–2B program. 

SOC occupational titles are broadly 

defined, and therefore capture a wider 

range of job duties than do the SCA and 

DBA occupational titles. As such, small 

differences in the requested job duties 

reported on a Form 9141 will not often 

result in differences in the prevailing 

wage issued under the OES. On the 

other hand, the very fact that SCA and 

DBA often provide more tailored 

occupational titles posed challenges in 

the H–2B program because in many 

cases duties for a single H–2B job 

opportunity cross multiple SCA or DBA 

occupations. The problems presented in 

Pacific Coast, supra, likely would not 

have arisen had the employer requested 

an OES prevailing wage determination 

because a single relevant SOC code 

would have captured all of the job 

requirements identified by the 

employer. Furthermore, centralizing the 

SCA and DBA prevailing wage 

determination process within WHD will 

reduce the potential for inconsistencies 

between the programs.45

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provided surveys would only create the same 

challenges for the NPWC as if they were allowed 

as an optional basis upon which to set the 

prevailing wage for H–2B purposes. Accordingly, 

this final rule does not permit the use of SCA and 

DBA wage determinations as sources to set the 

prevailing wage in the H–2B program, whether 

employers ask for them expressly in their prevailing 

wage requests, or rely on them indirectly through 

the submission of an employer-provided survey 

under the narrow conditions in which DOL will 

accept such surveys. 

46There is no direct link between the number of 

prevailing wage determinations and the number of 

temporary employment certifications. For example, 

an employer may request one PWD and then a 

second PWD for the same job opportunity, but 

would use only one of those two PWDs for its 

temporary employment certification application. 

NPWC issued 45 SCA and DBA PWDs in fiscal year 

2010 for the H–2B program (out of 4,096 total H– 

2B determinations), 77 in 2011 (out of 4,551 total), 

and 110 in 2012 (out of 8,370 total). 

47 634 SCA or DBA H–2B wage determinations 

out of 9,250 total. 

48 936 SCA or DBA H–2B wage determinations 

out of 6,427 total. 

b. Improved Prevailing Wage Procedures 

Without Adverse Effect to U.S. Workers 

Declining to allow employers the 

option to request an H–2B prevailing 

wage based on an SCA or DBA wage 

determination will streamline the H–2B 

prevailing wage determination process 

and expedite review of applications by 

the NPWC. As mentioned above, to 

issue a prevailing wage determination, 

the NPWC matched the tasks identified 

in the Form 9141 to an SOC code for 

every prevailing wage application 

received. Because the OES wage data is 

aligned with the SOC taxonomy, once 

the SOC code has been identified, it is 

relatively easy for NPWC to issue an 

OES-based prevailing wage for the 

occupation. An additional step is 

required, however, to match the 

position the employer has described on 

the Form 9141 to the corresponding 

occupation in the SCA Directory or the 

DBA local practice, which can be a 

cumbersome process because the duties 

identified on the Form 9141 do not 

always coincide with the duties 

reflected in the SCA and DBA 

occupational titles. As was recognized 

in the preamble to the 2013 IFR, 

determining whether multiple wage 

rates exist for every application is a time 

consuming process. 78 FR at 24054. If 

the H–2B regulation does not permit the 

optional use of the SCA and DBA wage 

determinations as sources to set the H– 

2B prevailing wage, the administration 

of the wage process will be streamlined 

and expedited, and disputes over their 

application and the attendant litigation 

will be reduced. 

It is particularly time consuming for 

the NPWC to issue H–2B prevailing 

wage determinations based on DBA 

wage determinations because the same 

occupations can sometimes encompass 

different job duties based on the 

prevailing practice in the locality in 

question. The result is that the matching 

process described above must be 

completed for each area of intended 

employment identified in the Form 

9141. Issuing an H–2B prevailing wage 

determination based on DBA wage rates 

differs from the process for determining 

the prevailing wage in an area of 

intended employment for the OES and 

the SCA. When issuing an H–2B 

prevailing wage determination based on 

a DBA wage rate, the NPWC does not 

identify the appropriate occupation only 

once and then locate that occupation’s 

proper wage in each geographic area 

applicable to the employer’s job 

opportunity. Rather, the job descriptions 

themselves change based on the local 

practice. This requires the NPWC to sort 

through each locality’s taxonomy to find 

a position that matches the job duties 

identified on the Form 9141 for each 

area of intended employment. This 

particular complexity in relying on DBA 

wage determinations for determining H– 

2B wage rates further underscores how 

the decision not to permit their use in 

the H–2B program will streamline the 

wage determination process, and reduce 

disputes over their application and any 

attendant litigation. 

The percentage of H–2B prevailing 

wage requests seeking an SCA- or DBAbased prevailing wage determination 

steadily increased over the last few 

years, thereby increasing the amount of 

time and resources that are devoted to 

issuing these determinations. Although 

there is some fluctuation, in the three 

fiscal years (FYs 2010, 2011, and 2012) 

before implementation of the wage 

provisions in the 2013 IFR, the NPWC 

issued H–2B prevailing wage 

determinations based on SCA and DBA 

wage rates, on average, in slightly more 

than one percent of all H–2B wage 

determinations.46 In FY 2014, the first 

complete fiscal year after 

implementation of the 2013 IFR, the 

NPWC issued H–2B prevailing wage 

determinations based on SCA and DBA 

wage rates in approximately seven 

percent of all H–2B wage requests.47 For 

the first quarter of FY 2015 (October 1, 

2014–December 31, 2014), SCA and 

DBA wage rates were issued for 

approximately 14 percent of all H–2B 

prevailing wage determinations.48 Thus, 

the NPWC experienced an 

approximately six-fold increase in the 

issuance of H–2B prevailing wage rates 

based on SCA and DBA wage 

determinations through FY 2014 and an 

even greater increase for the beginning 

of FY 2015, a figure that does not take 

into account requests submitted but 

rejected because the NPWC determined, 

following its analysis, that the 

employer’s job opening did not fit the 

SCA or DBA occupation. The decision 

not to permit the issuance of H–2B 

prevailing wage determinations based 

on the SCA and DBA wage rates will 

allow the NPWC to redirect those 

resources for use in processing OES 

prevailing wage determinations and for 

reviewing employer-provided surveys, 

thereby increasing the efficiency, 

consistency and speed with which all 

prevailing wage determinations are 

processed. 

The 2013 IFR acknowledged that the 

SCA and DBA wage rates constituted 

sound and reliable evidence of a wage 

that would ‘‘not adversely affect U.S. 

workers similarly employed,’’ 78 FR at 

24054, and this rule does not reach a 

different conclusion. Instead, the rule is 

based on the ‘‘extensive discretionary 

authority [granted to] the Secretary of 

Labor [under the INA to use] any of a 

number of reasonable formulas to 

prevent the employment of [temporary] 

foreign workers from having an adverse 

effect upon domestic workers. The 

immigration statute does not specify the 

particular way in which avoidance of 

this adverse effect must be determined.’’ 

Florida Sugar Cane League, Inc., v. 

Usery, 531 F.2d 299, 303–304 (5th Cir. 

1976). Thus, based on this wide 

latitude, we have determined that not 

issuing H–2B prevailing wage 

determinations based on SCA and DBA 

wage determinations will improve the 

administration and efficiency of the H– 

2B program, including promoting 

consistency in prevailing wage 

determinations, and that the remaining 

sources relied on to set the prevailing 

wage will adequately protect U.S. 

workers against adverse effect in their 

wages and working conditions arising 

from the employment of foreign 

workers. Workers who are currently 

working in H–2B occupations in which 

the SCA or DBA wages are higher than 

the OES mean are unlikely to be affected 

by the decision not to allow SCA and 

DBA wage determinations because most 

employers will have already chosen to 

pay the lower OES mean in that 

situation (unless those employers are 

required to pay the SCA or DBA wage 

rates under a government contract, as 

explained above). 

C. Use of Employer-Provided Surveys To 

Set the Prevailing Wage 

1. History of Employer-Provided Wage 

Surveys in the H–2B Program 

Before 1998, in the absence of an 

applicable SCA or DBA wage 

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49State Employment Service Agencies were the 

predecessors to the State Workforce Agencies. 

50This final rule uses the term ‘‘employerprovided survey’’ to mean any survey that an 

employer submits to DOL for use in setting the 

prevailing wage. This term does not distinguish 

between different types of surveyors, and includes 

both surveys conducted by a government entity and 

those conducted by private entities. Where this 

final rule makes distinctions based on the type of 

entity conducting the survey, it uses specific 

terminology, such as ‘‘state-conducted survey.’’ 

51Several cited seafood processing as an example 

of an occupation where employer-provided surveys 

have been used to suppress wages. 

determination or a CBA, DOL 

determined the applicable prevailing 

wage rate based on a wage survey 

provided by the local State Employment 

Service Agency (SESA). See GAL 4–95 

at p. 1–2.49 Employer-provided surveys 

were permitted for setting prevailing 

wage rates only where the results of the 

employer-provided survey were ‘‘more 

comprehensive’’ than the SESA survey. 

Id. at 7.50

In 1998, DOL began using the OES to 

set prevailing wages in the H–2B 

program where there was no available 

CBA, SCA, or DBA wage rate, but 

continued to allow employers to submit 

employer-provided surveys in the 

absence of a CBA, SCA, or DBA wage 

rate for the employer’s job, even where 

there was an available OES wage. See 

GAL 2–98 at pp. 1, 7. GAL 2–98 

eliminated the requirement that the 

employer-provided survey must be 

‘‘more comprehensive’’ than the SESA 

survey. Id. Instead, employers 

submitting a survey had to disclose the 

survey methodology in enough detail 

‘‘to allow the SESA to make a 

determination with regard to the 

adequacy of the data provided and its 

adherence to [survey] criteria.’’ Id. The 

guidance required that the survey data 

be recently collected: 

(1) The data upon which the survey was 

based must have been collected within 24 

months of the publication date of the survey 

or, if the employer itself conducted the 

survey, within 24 months of the date the 

employer submits the survey to the SESA. 

(2) If the employer submits a published 

survey, it must have been published within 

the last 24 months and it must be the most 

current edition of the survey with wage data 

that meet the criteria under this section. 

Id. 

In 2005, DOL issued revised 

prevailing wage guidance that allowed 

employers to continue to submit 

surveys. See 2005 PWD Guidance. If the 

job opportunity was not covered by a 

CBA, the 2005 PWD guidance allowed 

an employer to submit a wage survey 

even if there was an OES, SCA, or DBA 

wage. Id. at 14. This guidance 

maintained the timeliness of data 

requirements from GAL 2–98 and 

included a requirement that the 

employer provide ‘‘the methodology 

used for the survey to show that it is 

reasonable and consistent with 

recognized statistical standards and 

principles in producing a prevailing 

wage (e.g., contains a representative 

sample) . . .’’ Id. at 15–16. 

In the 2008 rule, DOL continued to 

allow use of employer-provided wage 

surveys in the absence of a CBA, 

provided that the surveys met minimum 

standards for validity. See 73 FR at 

78,056 (20 CFR 655.10(f)). In the 2008 

rule, DOL codified its historical 

standards for evaluating employerprovided wage surveys, stating that in 

each case where the employer submits 

a survey or other wage data for which 

it seeks acceptance, the employer must 

provide specific information about the 

survey methodology, including such 

items as sample size and source, sample 

selection procedures, and survey job 

descriptions, to allow a determination of 

the adequacy of the data provided and 

validity of the statistical methodology 

used in conducting the survey in 

accordance with guidance issued by the 

OFLC national office. The 2008 rule also 

codified the timeliness of data 

requirements under GAL 2–98. Id. 

In November 2009, shortly before 

DOL centralized prevailing wage 

determinations with the NPWC, it 

issued a new prevailing wage guidance 

document reiterating the standards 

carried over from the May 2005 

guidance document, now reflected in 

the 2008 rule. See 2009 PWD Guidance. 

The 2009 PWD Guidance retained the 

standards for evaluating employerprovided wage surveys, including the 

requirement that the employer submit 

recent data along with information 

pertaining to the survey’s methodology. 

Id. at pp. 14–16, Appendix F. 

In the 2011 Wage Rule, DOL 

eliminated the use of employerprovided wage surveys, except under 

limited circumstances. The 2011 Wage 

Rule stated that where there was no 

CBA, DBA, or SCA wage available for 

the job opportunity, an employer could 

submit a survey if the employer’s job 

opportunity was in a geographic area 

where OES wage data is not available, 

or where the OES does not accurately 

represent the employer’s job 

opportunity. See 20 CFR 655.10(b)(6) 

and (7) at 76 FR 3484. However, as 

discussed above, because the 2011 Wage 

Rule was never implemented, DOL 

continued to rely on the 2008 rule to 

implement the H–2B program. In 

response to the vacatur order in CATA 

II, DOL published the 2013 IFR, which 

eliminated the use of skill levels in 

setting the wages for the OES but 

otherwise left the 2008 rule unaltered. 

78 FR at 24053. The 2013 IFR continued 

to allow employer-provided surveys 

under the terms of the 2008 rule, and 

DOL continued to use the 2009 

Prevailing Wage Guidance to govern the 

review of such surveys. 

2. Comments on Employer-Provided 

Surveys 

As discussed above, the 2013 IFR 

made no changes to the provisions of 20 

CFR 655.10 dealing with employer 

provided surveys, which were 

maintained from the 2008 rule until 

vacated in CATA III. However, in the 

2013 IFR, the Departments requested 

public comment on ways that ‘‘the 

validity and reliability of employersubmitted surveys can be strengthened,’’ 

among other matters. 78 FR at 24055. In 

response, we received many comments 

from worker advocates, as well as from 

employers and their advocates. 

Worker advocates argued for a move 

from the status quo under the 2008 

rule—permissive use of employerprovided surveys—which the 2013 IFR 

did not modify, and which remained in 

place until the CATA III vacatur. The 

advocates submitted detailed proposals 

for limiting employer-provided surveys, 

generally raising concerns that the 

surveys are inconsistent; are unreliable; 

are artificially low; contribute to wage 

depression; are based on a conflict of 

interest where employers or their agents 

conduct or fund them; and create a 

burden on the agency to review. To 

ameliorate some or all of these concerns, 

worker advocates supported various 

survey reforms. Comments from a union 

federation, a labor-based think tank, and 

a consortium of worker advocates 

offered many of the criticisms of 

surveys, and presented many of the 

reform ideas. 

More specifically, worker advocacy 

groups echoed concerns, expressed in 

the 2011 Wage Rule and 2013 IFR, about 

the consistency, reliability, and validity 

of employer-provided surveys, and the 

groups stated that such surveys are only 

used to depress wages.51 One laborbased think tank asserted that such 

surveys are ‘‘fundamentally flawed, 

regardless of the methodology used, 

because employer surveys are 

conducted and/or funded by the 

employer or its agent,’’ creating an 

inherent pro-employer survey bias. 

If the Departments elect to permit in 

the future employer-provided surveys 

beyond those allowed under the 2011 

Wage Rule, worker advocacy groups, 

including a labor-based think tank and 

a federation of unions, overwhelmingly 

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52See the explanation of O*NET Job Zones in 

Sec. II. A., supra. 

53As discussed above, in Sec. II.A. and B, we also 

received a number of comments that advocated 

using the wage methodology from the Border 

Security, Economic Opportunity, and Immigration 

Modernization Act, S. 744, 113th Cong. (2013). 

These comments advocated returning to a tiered 

OES wage, and we understand these comments to 

refer to the appropriate OES wage rate. We note, 

however, that the bill also contained a provision on 

private surveys. Sec. 4211(a)(1) would have 

permitted an employer to use ‘‘a legitimate and 

recent private survey of the wages paid for such 

positions in the metropolitan statistical area’’ only 

where ‘‘the wage level commensurate with the 

experience, training, and supervision required for 

the job based on Bureau of Labor Statistics data . . . 

is not available.’’ Because BLS never issues data 

that takes these factors into account within an SOC, 

it is unclear whether this provision was intended 

always to permit use of private surveys, to allow 

such surveys only where there was no BLS wage for 

the SOC, or to use a methodology other than the 

SOC to determine whether the ‘‘job’’ was 

represented. 

asked that we establish significant 

limitations for them. One labor-based 

think tank suggested it that if the 

Departments were to permit any 

employer-provided surveys, it should 

require each survey to be publicly 

posted for 30 days before acceptance 

and create a new adjudicatory process 

permitting members of the public or 

workers to challenge the survey. 

In addition, we received virtually 

identical submissions from a dozen 

worker advocacy groups who 

recommended that, if we did not adopt 

the 2011 Wage Rule, which they 

favored, we should adopt a multi-part 

test for assessing employer-provided 

surveys. Most of these entities 

submitted the same statement advancing 

the following position: 

• Recommended that the 

Departments never permit employerprovided surveys if the resulting wage 

would be lower than the DBA, SCA, or 

CBA wage, consistent with DOL policy 

before 2005; 

• Asked that the Departments require 

any employer to demonstrate that the 

OES mean is inaccurate and 

inappropriate for the position. In the 

view of these commenters, the OES 

mean wage is the only accurate and 

appropriate wage for Zone 1 

occupations if BLS has sufficient data to 

calculate the mean wage for the SOC. 

They stated that employer-provided 

surveys should only be permitted for 

Zones 2 and 3 if the employer can 

demonstrate that the job requires no prehire training or experience or requires 

less training or experience than other 

jobs in that occupational group; 52

• Recommended that we incorporate 

by reference the standards for employerprovided surveys in the PERM rule at 20 

CFR 656.40(g), ‘‘including requiring that 

employer-provided surveys must be 

statistically accurate and independently 

verifiable’’; 

• Recommended that we ‘‘not accept 

employer-provided surveys that are 

based on data from H–2B employers 

whose wages have been depressed by 

participation in the prior four-tiered 

system or by reliance on prior employer 

wage surveys that did not meet the 

[PERM] requirements at 20 CFR 

656.40(g)’’; 

A comment submitted by a worker 

advocacy project on behalf of a large 

consortium of worker advocacy groups 

reiterated the proposals above and 

offered further explanation. Instead of 

asking the Departments to use the 

survey standards from the PERM 

regulation, this comment advocated the 

use of survey standards from the 2009 

Prevailing Wage Guidance [which 

already applied to the H–2B program at 

the time the 2013 IFR was published], 

emphasizing the requirement that any 

survey be conducted ‘‘across industries 

that employ workers in the occupation.’’ 

The comment further asked us to define 

the ‘‘occupation’’ in a manner consistent 

with the SOC. In addition, this comment 

recommended that, if there were 

occupations in which ETA receives a 

significant number of H–2B applications 

for which it determines that a job in 

Zone 2 or above requires less skill or 

experience than other jobs within the 

SOC (suggesting forestry as such an 

example), ETA should consult with its 

O*NET partners to establish appropriate 

O*NET sub-codes for that occupation. 

After completing this process, the 

comment further requested that ETA 

consult with BLS to establish 

methodologies that would allow the 

modification of OES-reported wage rates 

for those within the new sub-code. This 

comment asked that in all cases where 

an employer seeks to challenge the 

appropriateness of the BLS OES mean 

wage rate for a position within an SOC, 

we establish procedures to provide 

public notice of that application, 

including notice to labor organizations 

and others representing the economic 

interests of workers, allowing them to 

participate in the determination. 

This same comment provided several 

additional recommendations. First, it 

stated that the wages of nonimmigrant 

workers should be excluded from any 

survey because the wages of such 

workers have been depressed by earlier 

wage rules. Second, it suggested a threeyear phase-in of the new OES wage rate 

for employers who have long relied on 

employer-provided surveys if the 

industry is impacted by international 

trade, including in the seafood industry, 

in lieu of broader use of employerprovided surveys. Third, on the subject 

of state-conducted surveys, it expressed 

the view that: ‘‘The H–2B program has 

been adopted by some industries as a 

source of cheap labor at rates below the 

competitive market rates for such labor. 

State or maritime surveys that document 

the degree to which certain industries 

have been able to exploit nonimmigrant 

labor to pay below the prevailing market 

rates in that occupational classification 

should not be the basis for setting future 

wage rates.’’ 

On the other hand, we received 

several comments from employers and 

employer associations in favor of the 

use of employer-provided surveys.53

These comments tended to provide only 

general support for the use of employerprovided surveys with little explanation 

and largely advocated in favor of the 

status quo established in the 2008 rule, 

which remained unchanged under the 

2013 IFR, before the CATA III vacatur. 

Comments by several employers and 

employer associations in the seafood 

industry, as well as two U.S. Senators, 

are representative of this group of 

comments, by offering general support 

for surveys, particularly where 

conducted by a state agency. Several 

comments generally noted that 

employer-provided surveys are 

necessary where the type of work to be 

performed is not sufficiently aligned 

with the SOC-based OES. 

Several commenters noted DOL’s long 

history of permitting employer-provided 

surveys across multiple programs and 

asserted that the methodology standards 

in place at the time the 2013 IFR was 

published are sufficient. For example, 

one employer association promoted the 

use of employer-provided surveys as an 

‘‘important safeguard’’ for employers 

whose work ‘‘does not align with OES 

wage categories,’’ but did not identify 

any specific occupation for which there 

was a mismatch. This comment further 

provided that ‘‘the current provision 

provides more than enough safeguards 

to ensure such surveys are valid and 

reliable’’ and such surveys have been 

‘‘long utilized by the Department [of 

Labor] across several temporary worker 

programs.’’ 

Comments offered by several 

associations of seafood processing 

employers, individual employers, and 

members of Congress specifically 

endorsed use of employer-provided, 

state-conducted surveys by seafood 

processing employers. These comments 

considered state surveys to be reliable, 

cited the ‘‘unique’’ nature of seafood 

processing occupations, and asserted 

that the broader SOC category 

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encompassing seafood processing was 

inappropriate to set prevailing wages for 

these jobs. These comments stated that 

the work of seafood processors is not 

accurately represented by the DBA, 

SCA, or OES job classifications, 

necessitating the use of employerprovided surveys compiled by state 

agriculture or maritime agencies. For 

example, one comment noted that ‘‘the 

job category of ‘seafood processor/

picker’ is considered under the much 

broader categories that do not accurately 

reflect the wages of crab pickers in the 

Maryland seafood industry.’’ In 

addition, a seafood processing employer 

asserted that wages for seafood 

processers were based on particular 

industry challenges, including foreign 

competition and natural disasters that 

disrupt crops, and are generally based 

on a piece rate, making use of the OES 

survey data inappropriate in that 

industry. 

Finally, although the 2013 IFR 

requested public comment on ways that 

‘‘the validity and reliability of 

employer-submitted surveys can be 

strengthened,’’ 78 FR at 24055, we did 

not receive any comments from any 

source that provided suggestions on 

sample size, response rates, or other 

data improvements that might make 

such surveys more reliable. 

3. The Final Rule Permits Submission of 

an Employer-Provided Survey Only in 

Limited Circumstances 

Based on DOL’s administrative 

experience with employer-provided 

surveys, the comments received, and the 

court’s decision on CATA III, the 

Departments have decided to allow the 

submission of employer-provided 

surveys to set the prevailing wage in H– 

2B in limited circumstances. We discuss 

first the exceptions that CATA III 

recognized, where employer-provided 

surveys may be permitted in cases in 

which the OES does not provide data in 

the geographic area or where the OES 

does not accurately represent the 

relevant job classification, which may 

be conducted by private-sector, 

nongovernmental entities. We then 

discuss permissible employer-provided 

surveys conducted and issued by a state 

agency even where the OES may 

provide data to establish a prevailing 

wage. 

a. Wage Surveys Conducted by 

Nongovernmental Entities 

As discussed earlier in this preamble, 

given the substantive concerns 

expressed by the court in CATA III 

about the use of employer-provided 

surveys in the H–2B program, the 

options for accepting such surveys 

under this final rule are now necessarily 

more limited than when the 

Departments published the 2013 IFR. 

The court ‘‘direct[ed] that private 

surveys no longer be used in 

determining the mean rate of wage for 

occupations except where an otherwise 

applicable OES survey does not provide 

any data for an occupation in a specific 

geographical location, or where the OES 

survey does not accurately represent the 

relevant job classification.’’ 774 F.3d at 

191. 

These exceptions identified in CATA 

III are the exceptions DOL set out in the 

2011 Wage Rule, 76 FR at 3466–3467, 

which were supported by 

contemporaneous fact-finding. The 

court underscored this by suggesting 

that DOL could publish the survey 

provision in the 2011 Wage Rule 

immediately as an IFR to satisfy its 

decision. In the preamble to that rule, 

DOL recognized that in limited 

circumstances, some employer-provided 

surveys might provide useful 

information—e.g., where the OES 

survey does not provide data for a job 

opportunity in a specific geographic 

area or where a job opportunity is not 

accurately represented within a job 

classification used by the OES or 

alternative government surveys—and 

that use of an employer-provided survey 

would be appropriate in those cases. 76 

FR at 3465, 3467. However, DOL found 

that, as a general rule, employerprovided surveys should not be used to 

establish the prevailing wage, in part 

because they had been used ‘‘typically 

. . . to lower wages below the 

prevailing wage rate’’ or ‘‘to avoid using 

[a government] survey that produces a 

higher wage.’’ Id. at 3465, 3466. The 

decision to reject the routine use of 

employer-provided surveys in the 2011 

Wage Rule was based on DOL’s 

assessment that employer-provided 

surveys were not consistently reliable 

and because their review was 

administratively inefficient. Id. at 3465– 

3466. 

DOL continues to have concerns 

about the consistency, reliability, and 

validity of employer-provided surveys 

set out in the 2011 Wage Rule and in the 

2013 IFR, 78 FR at 24055. Moreover, 

DOL experience reviewing employerprovided surveys since 2011 has not 

provided any demonstrable evidence 

that the wage information produced 

from non-government surveys is any 

more consistent or reliable than DOL 

determined was the case four years ago. 

These ongoing concerns were echoed in 

many comments submitted by worker 

advocates. The court underscored those 

concerns in the CATA III decision. In 

fact, the court went further, finding that 

DOL had arbitrarily allowed wealthy 

employers to pay for expensive private 

surveys to lower the prevailing wage 

when, at the same time, other employers 

in the same location and occupation 

who cannot afford such surveys pay the 

higher OES mean wage. 774 F.3d at 

189–190. The court also noted the 

arbitrariness of the ‘‘considerable’’ wage 

disparities permitted by this system, 

which fails to set a consistent prevailing 

wage across an employment area. Id. 

774 F.3d at 190. This kind of disparity, 

the court concluded, ‘‘harms workers 

whether foreign or domestic, is readily 

avoidable, and [is] completely 

unjustified.’’ Id. 

We conclude that, given the reliability 

and comprehensiveness of the OES 

survey, the 2011 Wage Rule reflects 

reasonable limitations on an employer’s 

ability to submit an employer-provided 

survey. That rule’s two limited 

exceptions identify the only 

circumstances in which employerprovided surveys may provide DOL 

with wage information to which DOL 

does not currently have access. Some 

comments suggested that there are other 

categories of jobs beyond those 

identified in the 2011 Wage Rule in 

which the OES is somehow mismatched 

to the H–2B job opportunity. However, 

despite some general criticisms about a 

particular H–2B job’s inclusion in an 

overly broad SOC category, none of 

these comments established with any 

conclusiveness that a specific 

occupation is not included in the 

particular SOC surveyed by the OES. 

Accordingly, we continue to hold the 

view that the OES adequately covers all 

occupations outside of the two 

exceptions identified in the 2011 Wage 

Rule and upheld in CATA III. In 

addition, except for the limited 

circumstances discussed here, it is not 

administratively efficient to expend 

resources reviewing employer-provided 

surveys if a robust and accurate 

prevailing wage under the OES is 

available. 

Accordingly, consistent with the 2011 

Wage Rule and pursuant to the court’s 

decision in CATA III, this final rule 

permits the use of a nongovernmental 

employer-provided survey to set the 

prevailing wage only where the OES 

survey does not provide any data for an 

occupation in a specific geographical 

location, or where the OES survey does 

not accurately represent the relevant job 

classification. In reviewing these 

exceptions from the 2011 Wage Rule, we 

note that the characterization of both 

exceptions in the preamble to the rule 

contained ambiguities, which are 

clarified in this final rule. With respect 

to the 2011 exception that permitted 

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54 DOL’s analysis of FY 2013 H–2B data shows 

that of the top ten SOC codes used in the H–2B 

program, only two—Fishers and Related Fishing 

Workers and Forest and Conservation Workers— 

may be eligible for this exception because the OES 

may only report a national wage for the SOC in a 

particular geographic area. Certified H–2B 

applications involving those SOC codes combined 

constitute only 5 percent of all such certified 

applications. Furthermore, only 2 percent, which is 

a subset of this 5 percent of all such certified 

applications, involve geographic areas where the 

SOC reports only a national mean wage. 

55Under the 2011 regulatory text, a survey is 

permissible if the job opportunity was not listed in 

the Dictionary of Occupational Titles (DOT) and is 

not listed in the Standard Occupational 

Classification (SOC) system, or if the job 

opportunity was listed in the DOT or is listed in 

the SOC system, the DOT crosswalk to the SOC 

system links to an occupational classification 

signifying a generalized set of occupations as ‘‘all 

other’’; and the job description entails job duties 

which require knowledge, skills, abilities, and work 

tasks that are significantly different, as defined in 

guidance to be issued by the OFLC, than those in 

any other SOC occupation. 

56This exception will apply if (A) the job 

opportunity is not included within an occupational 

classification of the SOC system; or (B) the job 

opportunity is within an occupational classification 

of the SOC system designated as an ‘‘all other’’ 

classification. 

surveys where the OES does not provide 

any data for an occupation in a specific 

geographic area, the regulatory text of 

the rule allowed surveys in ‘‘geographic 

areas where the OES does not gather 

wage data, including but not limited to 

. . . the Commonwealth of the Northern 

Mariana Islands[.]’’ Sec. 655.10(b)(6), 76 

FR at 3484. This suggests that the 

exception was limited to those 

geographic areas in which the OES did 

not actually collect wage data, such as 

the CNMI. However, the preamble to the 

2011 Wage Rule further described this 

exception as applicable ‘‘[w]here there 

is no data from which to determine an 

OES wage[.]’’ 76 FR at 3476 (emphasis 

added). This suggests that the no-OESdata exception is somewhat broader, 

and will also apply where the BLS may 

collect data in a geographic area but 

cannot report a wage for the SOC in that 

area, possibly because the sample size is 

so small for that area that it does not 

meet BLS methodological criteria for 

publication. 

DOL intended in the 2011 Wage Rule 

to permit surveys in both cases, that is, 

where the OES does not collect data in 

a geographic area and where the OES 

does not report a wage in a geographic 

area, and we adopt this construction of 

the exception in this final rule. In both 

cases, there is no BLS data from which 

to access a wage in the particular 

geographic area. This is also the reading 

the CATA III court gave to this 

exception when it directed that private 

surveys no longer be used ‘‘except 

where an otherwise applicable OES 

survey does not provide any data for an 

occupation in a specific geographical 

area.’’ 774 F.3d at 191 (emphasis 

added). Accordingly, the regulatory text 

in section 655.10(f)(1)(ii) of this final 

rule permits surveys where the OES 

does not collect data in a geographic 

area, or where the OES reports a wage 

for the SOC based only on national data. 

We adopt this construction because, 

where the OES reports wages for a 

geographic area based on a national 

average, that wage is not sufficiently 

tailored to the geographic area in which 

the job opportunity exists. Therefore, 

where the OES does not report wages for 

the area of intended employment— 

generally the metropolitan statistical 

area (MSA), or more broadly at the level 

of the MSA plus its contiguous areas, or 

even more broadly at the state level— 

this exception will apply. An example 

of a survey for an H–2B job opportunity 

that would meet this exception in some 

geographic areas involves SOC Code 45– 

3011—Fishers and Related Fishing 

Workers. The OES provides data for this 

category only for California and 

Washington State, and beyond those 

states it reports only the national wage. 

Therefore, surveys for Fishers and 

Related Fishing Workers would not be 

permitted in California or Washington 

State, but would be permitted in 

locations outside of those states. We 

expect that determining whether this 

exception applies should be relatively 

easy for both employers and DOL 

because it is based on objective, 

publicly available criteria that cannot be 

influenced.54

Similarly, the description of the 

second exception in the 2011 Wage 

Rule—where the OES does not 

accurately represent the job 

opportunity—also contained an 

ambiguity that is corrected here. The 

regulatory text set forth a somewhat 

unwieldy two-part test that would have 

led to confusion and subjectivity.55 Sec. 

655.10(b)(7)(i), 76 FR at 3484. However, 

the preamble to the 2011 Wage Rule 

suggested the employer’s sole burden in 

invoking this exception was ‘‘[t]o show 

that a job is not accurately represented 

within the SOC job classification 

system, an employer must demonstrate 

that the job opportunity was not in the 

[Dictionary of Occupational Titles 

(DOT)] or if the job opportunity was in 

the DOT, the crosswalk from the DOT to 

the SOC Codes places the DOT job in an 

‘all other’ category in the SOC.’’ 76 FR 

at 3467. In further describing this 

burden, the preamble stated that 

‘‘[a]ccordingly, the employer must 

demonstrate that the job entails job 

duties which require knowledge, skills, 

abilities, and work tasks that are 

significantly different than those in any 

SOC classification other than with the 

‘all other’ category.’’ Id. 

DOL intended in the 2011 Wage Rule 

to permit surveys where the job 

opportunity is not within an SOC 

occupation, or if it is within an SOC 

occupation, it is designated in an SOC 

‘‘all other’’ classification. The regulatory 

text at Sec. 655.10(f)(1)(iii) has been 

modified to reflect that.56 We have 

concluded that in order to effectively 

implement this exception, it does not 

matter whether the job opportunity was 

included in the DOT and, similarly, the 

use of the DOT crosswalk to the SOC is 

no longer essential to establish this 

exception. What matters is whether or 

not the job is included within the SOC, 

and if it is, whether it is included within 

an SOC ‘‘all other’’ classification. For 

clarity and uniformity of application, in 

order to use this exception, a job 

opportunity must not be included 

within an SOC classification, or if it is, 

it must fall into the SOC ‘‘all other’’ 

classification. We further clarify that if 

an occupation is appropriately placed in 

an ‘‘all other’’ classification, it 

necessarily involves job duties which 

require knowledge, skills, abilities, and 

work tasks that are significantly 

different than those in other SOCs. 

Therefore, this final rule requires an 

employer to demonstrate only that its 

job appropriately falls within the ‘‘all 

other’’ classification to avail itself of the 

exception, and does not require a 

separate showing of uniqueness. This 

clarification is also consistent with the 

Third Circuit’s reading of the exception, 

namely, that a private survey is 

available ‘‘where the OES survey does 

not accurately represent the relevant job 

classification.’’ 741 F.3d at 191. As with 

the first exception described above, we 

expect that determining whether a job 

opportunity fits this exception will be 

relatively straight-forward for all 

involved. Moreover, DOL will not 

accept an employer-provided survey on 

the basis that the job opportunity is 

within an ‘‘all other’’ SOC if the duties 

of the job opportunity or the employer’s 

prior filing history suggests that a more 

specific SOC is applicable. 

b. State-Conducted Surveys 

After considering the comments 

submitted in response to the 2013 IFR 

and re-examining the administrative 

findings from the 2011 Wage Rule, we 

have determined that it is appropriate to 

permit prevailing wage surveys that are 

conducted and issued by a state as a 

third, limited category of acceptable 

employer-provided surveys, even where 

the occupation is sufficiently 

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57For the reasons discussed above, this rule 

differs from the 2011 Wage Rule in that it does not 

require an employer to pay the highest of the OES, 

SCA, DBA, and CBA wage rates, and instead 

eliminates the use of the SCA and DBA wage rates 

as a source for determining H–2B prevailing wages. 

Similarly, this final rule does not require an 

employer to demonstrate that there is no available 

SCA or DBA wage rate before submitting an 

employer-provided survey. 

58Because DOL lacks similar relationships and 

experience with prevailing wage surveys conducted 

by local governments, employers may not submit 

surveys conducted by any unit of government other 

than the state, unless the employer falls within one 

of the other two permissible exceptions in this final 

rule for a job in which the OES does not collect or 

report data for a geographic area or does not 

adequately represent the occupation. 

59Technical Notes for May 2013 Estimates, 

available at http://www.bls.gov/oes/current/oes_

tec.htm. 

represented in the OES. In 2011, DOL 

rejected a comment suggesting that the 

SWAs rather than employers themselves 

should conduct surveys to determine 

the prevailing wage. 76 FR at 3464. DOL 

concluded then that SWA surveys 

resulted in inconsistent treatment of the 

same job opportunity from state to state 

that reflected ‘‘not the local conditions 

but the quality of the surveyors and the 

collection instruments used[.]’’ Id. 

However, DOL also concluded in 2011 

that ‘‘the prevailing wage rate is best 

determined through reliable 

Government surveys of wage rates, 

rather than employer-provided surveys 

that employ varying methods, statistics, 

and surveys [because using only 

government wage surveys] to determine 

the prevailing wage is the most 

consistent, efficient, and accurate means 

of determining the prevailing wage rate 

for the H–2B program.’’ 76 FR at 3465.57

Consistent with this assessment, we 

conclude that surveys conducted and 

issued by a state represent an additional 

category of reliable government surveys, 

and will not suffer the same infirmities 

as other employer-provided surveys as 

long as the state-conducted surveys 

meet the methodological standards 

included in this rule. The requirement 

that the state must independently 

conduct and issue the survey means that 

the state must design and implement the 

survey without regard to the interest of 

any employer in the outcome of the 

wage reported from the survey. In 

addition, to satisfy this requirement, a 

state official must approve the survey. 

This result has support in comments 

offered by worker advocates. Many 

commenters argued that, if permitted, 

employer-provided surveys must be 

conducted by third parties disinterested 

in the results. In addition, many survey 

advocates pointed to state-conducted 

surveys as ones undertaken by neutral 

third parties free from bias related to the 

outcome. Finally, no comments 

suggested that state-conducted surveys 

suffer from an inherent pro-employer 

bias, and we conclude that they do not 

so long as they are conducted using the 

survey standards we adopt here. 

Further, we understand that stateconducted surveys are ordinarily 

provided free of charge, and so allowing 

this limited exception does not 

implicate the court’s concern in CATA 

III that the 2013 IFR permitted wage 

disparities based solely on the financial 

resources available to employers to 

purchase surveys. 774 F.3d at 189–190. 

Moreover, DOL has substantial 

experience with wage surveys 

conducted by the states, and DOL 

concludes that they are generally 

reliable and an adequate substitute for 

the OES, provided that they meet 

sufficient methodological standards.58

Although ETA no longer funds the 

states to conduct prevailing wage 

surveys for the H–2B program given the 

availability of the OES survey, states 

continue to play an important role in 

the collection of prevailing wages for 

both the OES survey itself, as well as in 

DOL’s H–2A program. As BLS explains 

in its technical notes for the OES 

survey, ‘‘[t]he OES survey is a 

cooperative effort between BLS and the 

State Workforce Agencies (SWAs). BLS 

funds the survey and provides the 

procedures and technical support, while 

the State Workforce Agencies collect 

most of the data.’’ 59 Given DOL’s 

extensive experience partnering with 

the states to collect wage data, we now 

conclude that where a state elects to 

conduct a survey meeting the 

methodological requirements in this 

final rule, it is appropriate to permit that 

state-conducted wage survey to be used 

as a permissible alternative to the OES 

mean wage. This rule permits surveys 

conducted by state agencies, such as 

state agriculture or maritime agencies, 

or state colleges and universities 

because those sources are reliable and 

independent of employer influence. 

DOL stated in the 2011 Wage Rule 

that some wage surveys conducted by 

states did not meet DOL’s 

methodological standards. However, 

rather than barring all state-conducted 

surveys because some do not pass 

muster, we conclude that the 

appropriate course is to permit the 

submission of state-conducted surveys, 

but for DOL to review them carefully, 

and reject those that do not meet 

methodological requirements. In 

addition, DOL is no longer concerned 

about the depletion of administrative 

resources in the review of employersubmitted surveys noted in 2011 for the 

following reasons. See 76 FR at 3465, 

3466. First, far fewer employers will be 

permitted to submit wage surveys under 

this final rule than were allowed under 

either the 2013 IFR or the 2008 Rule. In 

addition, because employers will no 

longer have the option to request SCA 

and DBA wage determinations, 

resources typically devoted to review of 

requests to use the SCA and DBA wage 

determinations can be reallocated to 

review employer-provided surveys. 

Finally, as discussed in greater detail 

below, this final rule will require a 

uniform cover sheet for all surveys 

submitted that will facilitate a more 

streamlined, consistent, and effective 

review. Accordingly, we conclude that 

the review of state-conducted wage 

surveys—in addition to those employerprovided surveys that may be submitted 

as permitted by the 2011 Wage Rule— 

will not place a significant burden on 

DOL resources or measurably impact 

processing times. 

DOL’s experience to date shows that 

state-conducted surveys have produced 

prevailing wage rates below the OES 

mean. However, we conclude that this 

is likely the result of those instruments 

surveying the wages of only entry level 

workers. The now-vacated 2009 

Prevailing Wage Guidance permitted 

surveys using skill levels and, as a 

result, under the 2013 IFR, the state 

surveys submitted by some employers 

surveyed only entry level workers. We 

think that this explains much of the 

wage gap between the wages issued 

under these surveys and the OES mean. 

As the court held in CATA III, 

acceptance of such skill-level surveys 

incentivized some employers to submit 

a survey to receive a skill level wage 

rate that was no longer permitted under 

the OES. Moreover, as this rule is 

implemented, DOL will continue to 

monitor closely the methodological 

standards employed and the results 

produced by state-conducted surveys. 

Consistency in setting the prevailing 

wage is best promoted by requiring both 

state-conducted and other employerprovided surveys to meet the same 

methodological standards. 

Because many state-conducted 

surveys use their own occupational 

taxonomy in conducting prevailing 

wage surveys, we received comments 

asking us to standardize job 

classifications by requiring all 

employer-conducted surveys to use the 

OES SOC taxonomy. We decline to 

impose such a standard because it 

would be inconsistent with DOL’s 

current practice in other immigrant and 

nonimmigrant programs. Where the 

survey reflects the actual job duties to 

be performed by the H–2B workers, it 

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60A comment submitted by a worker advocate 

project on behalf of a large consortium of worker 

groups provided evidence that some employerprovided surveys submitted under the 2008 Rule in 

FY–2012 resulted in wages below the OES Level 

One Wage. It appears that some of the wages cited 

by the commenter as below the OES Level One 

wage were issued based on a state-conducted 

survey. As discussed above, a tiered wage rate was 

permitted for both OES wages and wages issued 

based on an employer-provided survey under the 

2008 Rule. For the reasons discussed elsewhere in 

this final rule, we have now eliminated the use of 

skill levels in both OES and employer-provided 

survey wage rates and have eliminated the option 

for employers to submit any wage survey conducted 

by a non-governmental entity other than in very 

limited circumstances. 

61The 2009 Prevailing Wage Guidance is also 

used to assess employer-provided surveys 

submitted in the H–1B program. It was also used 

to assess surveys in the H–2B program until the 

CATA III court vacated the guidance as it was 

applied in the H–2B program. The court’s vacatur 

of the guidance related primarily to its 

authorization of skill levels in H–2B surveys and 

most aspects of the guidance document remain 

reasonable general standards for application to 

survey assessment. 

62The 2008 rule at 20 CFR 655.10(b)(4), which 

remained unchanged under the 2013 IFR, likewise 

permitted the use of the median if a mean wage was 

not provided in the survey. This provision 

permitting the median wage to be used is consistent 

with the rule for employer-provided surveys across 

DOL’s other programs. See, e.g., 20 CFR 656.40(b)(3) 

(PERM). 

In addition, while 20 CFR 655.10(b)(4) of the 

2008 Rule provided that any median from an 

employer-provided survey must be the ‘‘median of 

the wages of U.S. workers similarly employed,’’ we 

do not include the ‘‘U.S.’’ from this language in the 

new regulatory text at 20 CFR 655.10(f)(2). DOL has 

never had a rule in effect for the H–2B program that 

limited employer-provided surveys that provide a 

mean wage rate to U.S. workers, and the limitation 

on surveys providing the median in the 2008 Rule 

appears to be the result of a drafting error. A 

discussion of the inclusion of nonimmigrant 

workers in employer-provided surveys is provided 

below. 

63Before the court vacated 20 CFR 655.10(f) of the 

2013 IFR in CATA III, DOL continued to permit 

employers to submit surveys that used skill levels, 

including surveys seeking wages of only ‘‘entry 

level’’ workers or workers with less than a year of 

experience based on the 2009 Prevailing Wage 

Guidance. That guidance required employers to 

survey workers who are ‘‘similarly employed,’’ 

which was defined as ‘‘jobs requiring substantially 

similar levels of skills.’’ 2009 Prevailing Wage 

Guidance at p. 15. 

remains an adequate basis upon which 

to set the prevailing wage, and will not 

have an adverse effect on the wages and 

working conditions of U.S. workers. 

Accordingly, this final rule will permit 

employer-provided surveys, including 

those conducted by a state, to survey an 

‘‘occupation’’ based on the job duties 

performed, consistent with DOL 

practice across labor certification 

programs. This practice may result in a 

reported wage that is below the SOCbased OES mean, which we conclude 

will not have adverse effect on the 

wages of U.S. workers because it is an 

accurate representation of the wages 

paid to other workers performing the 

same duties, given the use of an 

alternate, non-SOC-based taxonomy.60

As discussed below, however, 

consistent with DOL’s practice across 

other programs and under earlier H–2B 

rules, DOL will require that employerprovided surveys report wages across 

industries that employ workers in the 

occupation surveyed and will use the 

same cross-industry standard for 

surveys that are conducted by states as 

well as those that are allowed under the 

two 2011 categories. Indeed, because 

this final rule permits employerprovided surveys where the SOC does 

not adequately represent the 

occupation, it would frustrate the 

purpose of that exception to then 

require employer-provided surveys to be 

conducted across the SOC. 

4. Methodological Standards Applicable 

to All Employer-Provided Surveys 

For the reasons discussed above, this 

final rule permits the prevailing wage to 

be set based on an employer-provided 

survey only where the survey was 

conducted by a state or in the two 

limited circumstances where this final 

rule concludes that the OES wage does 

not provide adequate information for 

the geographic area or occupation. DOL 

will provide all other employers with a 

prevailing wage determined by either a 

collective bargaining agreement 

negotiated at arms’ length or the OES 

mean wage for the occupation. 

For the limited class of employerprovided surveys that are permitted, 

this final rule imposes methodological 

requirements to ensure that the survey 

is sufficiently reliable as the basis for 

setting the prevailing wage. Many of the 

requirements are imposed to provide 

consistency between the OES and an 

employer-provided survey to the extent 

possible, and were contained in the 

2009 Prevailing Wage Guidance that 

DOL uses to implement the PERM 

rule.61 Many worker advocates asked 

the Departments to include the PERM 

standards by reference in this final rule. 

Other requirements in this section are 

imposed to ensure compliance with the 

court’s decision and order in CATA III. 

Finally, this rule requires use of a 

standard survey attestation that will 

provide needed consistency across 

surveys that are submitted and add 

efficiencies to the DOL survey review 

process. 

Some commenters asked us to adopt 

additional requirements, beyond those 

included in the 2009 Prevailing Wage 

Guidance that was in effect at the time 

the 2013 IFR was published, for the 

limited class of employer-provided 

surveys permitted under this final rule. 

The commenters suggested creating an 

adjudicatory process to allow worker 

advocates to submit competing evidence 

in response to an employer-provided 

survey. DOL has never required such a 

process in any of the prevailing wage 

programs that ETA administers, and the 

agency declines to do so now. ETA 

analysts review surveys submitted 

across the immigrant and nonimmigrant 

programs within DOL’s jurisdiction and 

possess the expertise needed to review 

an employer-provided survey to 

determine whether it falls into one of 

the permissible categories and meets 

methodological requirements. 

Accordingly, we determine that any 

value from this additional information 

is outweighed by the costs and delays 

that such a requirement would impose. 

a. The Final Rule Bars the Use of Skill 

Levels in Employer-Provided Surveys 

and Requires All Surveys To Report the 

Mean or Median Wage of Workers 

Similarly Employed in the Area of 

Intended Employment 

This final rule requires that, in the 

limited circumstances where an 

employer-provided survey is permitted, 

the survey must provide the arithmetic 

mean of the wages of all workers 

similarly employed in the area of 

intended employment, except that if the 

survey provides only a median, the 

prevailing wage will be based on the 

median of the wages of workers 

similarly employed in the area of 

intended employment.62 This provision 

largely mirrors the language in 

paragraph (b)(2) applicable to use of the 

OES to set the prevailing wage, and 

requires an employer-provided survey 

to include all workers in the occupation 

regardless of skill level, experience, 

education, and length of employment. 

This provision reflects the limitations 

imposed by the court in the CATA III 

decision, which concluded that surveys 

based on skill levels impermissibly 

conflict with the agency’s rejection of 

skill level-based wage determinations in 

the IFR. See 774 F.3d at 190–191.63

The court held in CATA III that 

permitting employers to submit surveys 

that used skill levels was a substantive 

APA violation in light of DOL’s finding 

in the 2011 Wage Rule and the 2013 IFR 

that the use of skill levels to issue OES 

prevailing wages would depress the 

wages of U.S. workers because most H– 

2B jobs involve unskilled occupations 

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64The OES instructs employers to exclude the 

wages of workers ‘‘not covered by unemployment 

insurance.’’ See, e.g., OMB Form 1220–0042 at p. 

1, available at http://www.bls.gov/respondents/oes/ 

pdf/forms/311000.pdf. State law governs whether 

nonimmigrant workers, including H–2B workers, 

are covered by unemployment insurance, and so 

this instruction may have the incidental effect of 

excluding the wages of some categories of 

nonimmigrant workers from the OES survey in 

some states. 

65As discussed in Sec. II.C.2, we also received 

comments asking that DOL ‘‘not accept employerprovided surveys that are based on data from H–2B 

employers whose wages have been depressed by 

participation in the prior four-tiered system or by 

reliance on prior employer wage surveys that did 

not meet the requirements at 20 CFR 656.40(g).’’ 

Because nearly all employers who have participated 

in the H–2B program in recent years paid a wage 

based on wage tiers until the 2013 IFR, this 

comment suggests the exclusion from surveys of 

nearly all H–2B employers, an outcome that would 

go beyond the position that we adopted in the 2011 

Wage Rule. We decline to take this suggestion 

because it requests that the surveyor exclude 

workers performing identical tasks included in the 

survey. We conclude that this selective sampling 

suggested is inconsistent with both the 

requirements for random or universe sampling 

discussed below and with the OES methodology. 

66The methodological standards required in this 

rule are consistent with—and in some 

circumstances more extensive than—the 

methodological standards from the PERM rule that 

some commenters urged us to apply to the H–2B 

program. The Paperwork Reduction Act 

implications of this attestation are discussed in Sec. 

III.C., infra. 

requiring few or no skill differentials. 

774 F.3d at 190–191. Accordingly, to 

achieve consistency with our 

methodology for prevailing wages 

issued under the OES and to comply 

with the CATA III decision, this final 

rule prohibits employer-provided 

surveys in the H–2B program that report 

wages based on skill levels. See 20 CFR 

655.10(f)(2) of this final rule. 

In addition, the requirement that the 

survey provide the mean or median of 

the wages of all workers ‘‘similarly 

employed’’ requires the survey to be 

conducted without regard to the 

immigration status of the workers 

surveyed. In imposing this requirement, 

we revisit DOL’s administrative finding 

in the 2011 Wage Rule that including 

the wages of H–2B or other 

nonimmigrant workers in the survey 

may depress wages. 76 FR at 3467. In 

addition, some comments in response to 

the 2013 IFR asked that we bar 

employer-provided surveys that include 

the wages of nonimmigrant workers on 

the same grounds. However, we now 

conclude, for the reasons stated below, 

that requiring surveys to collect data 

without consideration of the 

immigration status of nonimmigrant 

workers is appropriate. We caution that 

this final rule does not allow the 

selective reporting of only 

nonimmigrant workers, but requires all 

similarly employed workers to be 

included in the sample, regardless of 

immigration status. DOL will not accept 

wage surveys that exclude the wages of 

U.S. workers or exclude the wages of 

nonimmigrant workers. 

DOL’s determination in the 2011 

Wage Rule was not based on empirical 

data showing that excluding the wages 

of nonimmigrant workers from a survey 

would result in a more accurate 

prevailing wage. In addition, the 

commenters did not submit any data 

supporting their request to exclude 

nonimmigrant workers from surveys. 

Requiring the survey to be collected 

without regard to immigration status 

will promote consistency with the OES, 

which does not bar the inclusion of 

nonimmigrant workers.64 Further, 

commercial wage surveys generally do 

not exclude workers from the survey 

based on immigration status, and, where 

this final rule concludes that the OES 

does not provide adequate information 

for the occupation or geographic 

location, we are concerned that 

requiring the exclusion of nonimmigrant 

workers would effectively bar 

employers from using such wage 

surveys. See 20 CFR 655.10(f)(2) of this 

final rule.65

b. This Final Rule Requires Employers 

To Provide a Standard Attestation With 

an Employer-Provided Survey That 

Provides Basic Methodological 

Information Needed To Evaluate the 

Request 

The content of employer-provided 

surveys in the H–2B program has varied 

widely and has not been consistently 

reliable, which is why such surveys are 

generally not permitted in this final 

rule. To enhance the consistency of the 

limited class of employer-provided 

surveys that are acceptable under this 

final rule and ensure that surveys 

provide sufficient information to allow 

DOL to make a finding that the survey 

is reliable, this final rule requires that 

each employer-submitted survey 

include a standard attestation, signed by 

the employer, based on information 

provided by the surveyor. The 

attestation must set forth specific 

information about the survey 

methodology, including such items as 

sample size and source, sample 

selection procedures, and survey job 

descriptions, to allow a determination of 

the adequacy of the data provided and 

validity of the statistical methodology 

used in conducting the survey. The 

form, provided as an appendix to this 

final rule, addresses each of the 

methodological requirements in this 

final rule.66 Submission of this form 

will not preclude the NWPC from 

requesting additional information as 

necessary to evaluate and determine the 

validity of the survey for the purposes 

of issuing a prevailing wage 

determination. 

Much of the information required by 

the new form was already required to be 

provided under the 2008 rule. This 

information was unchanged as to 

employer-provided surveys under the 

2013 IFR, and required an employer to 

provide, among other things: ‘‘Specific 

information about the survey 

methodology, including such items as 

sample size and source, sample 

selection procedures, and survey job 

descriptions, to allow a determination of 

the adequacy of the data provided and 

validity of the statistical methodology 

used in conducting the survey in 

accordance with guidance issued by the 

OFLC national office.’’ See 20 CFR 

655.10(f)(2) of the 2008 rule. The 2009 

Prevailing Wage Guidance provided 

further instructions on employerprovided surveys, and the NPWC could 

issue a request for information to seek 

additional information needed to 

evaluate a survey that was submitted. 

However, in practice, employers often 

submitted information of varying 

quality and detail. Whether information 

required by this final rule is new or 

based on established survey 

requirements is discussed for each 

survey requirement in this preamble. 

The enhanced survey consistency 

enabled by the new form will make 

DOL’s review more efficient. In 

addition, the required attestation will 

increase the transparency of the survey 

review process by providing all 

employers the criteria against which 

DOL will assess the surveys in an easily 

accessible format. This will reduce the 

number of instances where DOL will 

reject an employer-provided survey 

because it provides insufficient 

information to assess its validity. 

Although employer-provided surveys 

are limited to those conducted by bona 

fide third parties for occupations and 

geographic areas where the OES does 

not provide adequate information (as 

discussed in Sec. II.C.4.f below) or 

surveys conducted by states (as 

discussed in Sec. II.C.3 and II.C.4.f), it 

is appropriate to require the employer to 

attest to the methodology in the survey 

to the best of its knowledge and belief. 

Because the employer is seeking to use 

the survey to set the prevailing wage, 

the employer is ultimately responsible 

for ensuring that the survey meets all 

required standards. We expect that in 

many cases the employer will be able to 

obtain the basic methodological 

information required to complete the 

attestation from the survey instrument 

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67See GAL 4–95 (May 18, 1995) at p. 4 (‘‘If the 

employer requesting a prevailing wage 

determination is the only employer [in the area of 

employment] employing workers in the occupation 

for which the prevailing wage request was made, 

the SESA may . . . . [s]urvey jobs outside the area 

of employment with the same 9-digit DOT code as 

was assigned to the job opportunity/occupation for 

which the employer requested a prevailing wage 

determination[.]’’). 

68See id. at p. 4 (‘‘SESAs can also . . . survey 

jobs outside the area of intended employment if a 

sufficient number of employers fail to respond to 

a survey to provide a reliable prevailing wage 

determination.’’). 

69The term ‘‘area of intended employment’’ is 

defined at 20 CFR 655.5 of the companion H–2B 

rule issued on the same day as this final wage rule. 

70See ETA, Prevailing Wage Determination 

Policy Guidance (November 2009), Appendix F, at 

p. 1; ETA, Prevailing Wage Determination Policy 

Guidance (May 17, 2005), Appendix F, at p. 1; GAL 

2–98 (Oct. 31, 1997) at p. 8 (‘‘A valid arithmetic 

mean for an area larger than an OES wage area, 

whether MSA, PMSA, or OES Balance of State area, 

may only be used if there are not sufficient workers 

in the specific occupational classification relevant 

to the employer’s job opportunity in the area of 

intended employment.’’). 

itself. See 20 CFR 655.10(f)(4) of this 

final rule. 

c. The Final Rule Requires Surveyors To 

Either Make a Reasonable, Good Faith 

Effort To Sample All Employers With 

Workers Similarly Employed in the 

Occupation and Area Surveyed or Base 

the Survey on a Random Sample of 

Such Employers 

The 2009 Prevailing Wage Guidance 

suggested, but did not expressly require, 

that an employer-provided survey use 

random sampling. See 2009 Prevailing 

Wage Guidance, Appendix F at p. 2. We 

are concerned that leaving random 

sampling as only an option rather than 

a requirement may result in employerprovided surveys that use selective 

sampling or other techniques that do not 

result in a reliable prevailing wage. To 

address this concern and ensure that 

surveys submitted are sufficiently 

reliable, this final rule requires that the 

surveyor either make a reasonable, good 

faith attempt to contact all employers 

employing workers in the occupation 

and area surveyed, or survey a random 

sample of such employers. 

Where the universe of employers is 

small, it may be necessary to attempt to 

contact all employers with workers 

similarly employed in the occupation 

and geographic area to ensure that the 

minimum sample size is met. A 

reasonable, good faith attempt to contact 

all employers with workers similarly 

employed in the occupation means, for 

example, that the surveyor might send 

the survey through mail or other 

appropriate means to all employers in 

the geographic area and then follow-up 

by telephone with all non-respondents. 

On the other hand, if there are a large 

number of employers in the geographic 

area, surveyors will likely use the 

random sample option. Proper 

randomization requires the surveyor to 

determine the appropriate ‘‘universe’’ of 

employers to be surveyed before 

beginning the survey and to select 

randomly a sufficient number of 

employers to survey to meet the 

minimum criteria on the number of 

employers and workers who must be 

sampled, as discussed below. See 20 

CFR 655.10 (f)(4)(i) of this final rule. 

d. The Final Rule Requires All 

Employer-Provided Surveys To Include 

the Wages of at Least Three Employers 

and 30 Workers 

Consistent with OES methodology, 

this final rule requires an employerprovided survey to include wages 

collected from at least three employers 

and 30 workers. BLS requires wage 

information from a minimum of three 

employers and 30 workers (after raw 

OES survey data is appropriately 

scrubbed and weighted) before it deems 

data of sufficient quality to publish on 

its Web site. In addition, these standards 

are consistent with the methodology 

from the 2009 Prevailing Wage 

Guidance that was in effect for the H– 

2B program at the time the 2013 IFR was 

published and with standards for the 

PERM program that some commenters 

recommended we apply to any H–2B 

surveys accepted. See 2009 Prevailing 

Wage Guidance, Appendix F at p. 2. 

Further, although the 2013 IFR sought 

comments on ways to improve the 

methodology for employer-provided 

surveys, 78 FR at 24055, we did not 

receive any comments recommending 

that we change these minimum sample 

sizes. 

Based on DOL’s experience reviewing 

employer-provided surveys and the 

desire to provide consistency between 

the OES methodology and the 

methodology for employer-provided 

surveys, we conclude that three 

employers and 30 workers is the 

minimum number of data points 

required to produce a reliable arithmetic 

mean wage for an occupation in a given 

area of intended employment. Under 

this final rule, the surveyor would take 

into account the nature and duties of the 

job opportunity, and contact a large 

enough sample of employers to yield 

usable data for at least three employers 

and 30 workers similarly employed, 

regardless of immigration status, as 

discussed further in Sec. II.C.4.a above. 

Employers responding to the survey 

may not report wages selectively or base 

responses on only a portion of the 

workers similarly employed in the 

occupation that is the subject of the 

survey; rather, each employer 

responding to the survey must collect 

and report wage data for all of its 

workers in the occupation regardless of 

their level of skill, education, seniority, 

or experience. Under this final rule, if 

a surveyor could not obtain wage results 

for 30 workers, the area surveyed may 

be expanded beyond the area of 

intended employment under the 

guidelines discussed further below. 

However, as DOL stated in the 2009 

Prevailing Wage Guidance (see 

Appendix F at p. 2), in most cases a 

surveyor should be able to report data 

for at least 30 workers and three 

employers in the occupation and area of 

intended employment without 

expanding the survey beyond the area of 

intended employment. See 20 CFR 

655.10(f)(4)(ii) of this final rule. 

e. The Final Rule Allows the Area 

Surveyed to be Expanded Beyond the 

Area of Intended Employment in 

Certain Limited Circumstances 

In any of the three limited categories 

in which an employer-provided survey 

may be submitted, this final rule 

permits the survey to cover a geographic 

area larger than the area of intended 

employment only if all of the following 

conditions are met: (1) The expansion is 

limited to geographic areas that are 

contiguous to the area of intended 

employment; (2) the expansion is 

required to meet either the 30-worker or 

three-employer minimum; and (3) the 

geographic area is expanded no more 

than necessary to meet these minimum 

requirements. The H–2B program has 

always required that surveys reflect 

wage data for the area of intended 

employment, but has allowed states and 

employers to expand wage survey 

boundaries under limited 

circumstances, such as where the 

employer submitting the prevailing 

wage request is the only entity in the 

area employing persons in a given 

occupation,67 or when the survey elicits 

an insufficient response from 

employers.68 When the number of 

workers in the area of intended 

employment 69—that is, the 

metropolitan statistical area of the job 

opportunity and the area within normal 

commuting distance from the job 

opportunity—is insufficient to meet 

survey standards, DOL has also allowed 

surveys to include data from employers 

located outside the area of intended 

employment.70 This final rule codifies 

the practice. 

This final rule also requires that the 

area to which the survey expands be 

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71See GAL 4–95 (May 18, 1995) at p. 4 (‘‘If it is 

necessary to include jobs outside the area of 

intended employment, the geographic area of 

consideration should not be expanded more than is 

necessary to obtain a representative number of 

employers employing workers in the occupation for 

which a determination is to be made. For example, 

it is appropriate to survey cities and counties that 

are in close proximity to the area of intended 

employment rather than using a State-wide average 

wage rate.’’), GAL 2–98 (Oct. 31, 1997) at p. 8 

(‘‘However, the area of intended employment [for 

survey purposes] should not be expanded beyond 

that which is necessary to produce a representative 

sample. In all cases where an area that is larger than 

an OES wage area is used, the employer must 

establish that there were not sufficient workers in 

the area of intended employment, thus necessitating 

the expansion of the area surveyed.’’), and GAL 1– 

00 (May 16, 2000), Attachment A, p. 2, available at 

http://wdr.doleta.gov/directives/corr_

doc.cfm?DOCN=1214 (restating this principle). 

72The BLS practice is generally described in GAL 

2–98, at p. 4 (‘‘Expansion of Area of Intended 

Employment . . . The OES survey data will 

represent all responding employers in the area of 

intended employment who employ workers in that 

OES occupational code. If the OES survey does not 

include enough responses in that area and 

occupation to allow BLS to publish the data, the 

OES system will default to all MSAs, PMSAs, and 

Balance of State areas contiguous to the requested 

area within that State. If this still does not result 

in publishable data, the system will default to 

statewide information for that occupation. Because 

of the size of the sample, it is unlikely this will 

occur except in very unusual occupations or in 

small States.’’). See also OFLC’s explanation of 

‘‘geographic level’’ at: http://flcdatacenter.com/

faq.aspx. 

73This requirement does not bar an employer 

from paying an otherwise bona fide third party to 

conduct the survey. In addition, employers who are 

eligible to submit a survey under Sec. 

655.10(f)(1)(ii) or (iii) may submit a survey 

conducted and issued by a state. 

74Employer associations may be bona fide thirdparties for the purposes of this rule. 

contiguous to the area of intended 

employment. OFLC’s program 

experience demonstrates that some 

employers have submitted surveys that 

expanded the survey area using remote 

geographic areas located far from the job 

opportunity. We see no reason for a 

survey to ignore areas immediately 

surrounding the job opportunity in favor 

of geographic areas located large 

distances from the job In practice, the 

NPWC rarely, if ever, has found a reason 

to accept surveys from remote locations. 

Thus, codifying this limitation will give 

surveyors clearer guidance and save 

employers the cost and effort of 

commissioning surveys the NPWC will 

not use. The new requirement would 

also save processing time, as NPWC staff 

would no longer be presented with 

surveys for areas not narrowly tailored 

to suit the job opportunity. 

The final rule further requires that 

surveyors expand the geographic area 

only to the extent necessary to meet the 

minimum sample size requirements of 

this final rule. DOL has traditionally 

cautioned states and employers that, for 

purposes of surveys, the geographic area 

should be expanded only to the extent 

necessary to produce a representative 

sample,71 and this provision codifies 

that expectation. This limitation reflects 

DOL’s view that surveys submitted for 

labor certification purposes must take a 

careful approach to expansion rather 

than default immediately to state-wide 

coverage. As always, if the NPWC, in 

the course of its prevailing wage review, 

believes that the geographic area is 

overly broad, the NPWC may ask the 

employer for additional information 

and/or reject the survey under this 

subsection. 

Incremental, tailored expansion is 

consistent with OES survey 

methodology. The OES data used in the 

foreign labor certification program 

(which appears on DOL’s Online Wage 

Library) uses the concept of geographic 

‘‘levels’’ to allow expansion of the area 

for which wages are reported. 

Geographic levels are indicators of the 

breadth of the area. When the OES 

survey fails to collect enough usable 

data for a given geographic area (for 

example, an MSA or a ‘‘balance of state’’ 

area), BLS rolls over to the next largest 

geographic area until it reaches an area 

large enough that it has enough data to 

report. BLS will expand the area for 

which it reports data only as necessary, 

and will report wage data for the 

smallest area for which reliable data is 

available.72

Surveyors may approach this 

requirement in two ways. In cases 

where an employer contracts with a 

surveyor familiar with the area of 

employment, the surveyor may 

determine before beginning the survey 

that the survey will not elicit a 

sufficient response to meet the 

regulatory requirements—for example, if 

there are not enough employers or 

workers in the area. In these cases, the 

surveyor may elect, at the outset, to 

survey a geographic area larger than the 

area of employment. The employer, 

when completing the survey attestation, 

discussed above at Sec. II.C.4.b, must 

explain the decision to expand the 

survey area at the outset, and describe 

the extent of the expansion and the 

reason why expansion was needed to 

meet the regulatory requirements based 

on information provided by the 

surveyor. 

In other cases, a surveyor may use a 

more incremental approach. For 

example, the surveyor may survey the 

area of intended employment, but the 

survey still yields an insufficient 

response. In such cases, the surveyor 

must either make a reasonable, good 

faith effort to contact all employers 

employing workers in the occupation in 

the expanded area or survey a new, 

random sample of such employers in 

the expanded area, as discussed further 

in Sec II.C.4.c. See 20 CFR 655.10(f)(3) 

of this final rule. 

f. The Survey Collection Must Be 

Conducted by a State or, in a Case 

Where the OES Does Not Provide 

Adequate Data for the Geographic Area 

or the Occupation, a Bona Fide Third 

Party 

This final rule requires that if an 

employer provides a survey because the 

OES survey does not provide data for 

the SOC in a geographic area under 20 

CFR 655.10(f)(1)(ii) or the OES does not 

provide adequate information for the 

occupation as provided under 20 CFR 

655.10(f)(1)(iii), a bona fide third party 

must conduct the collection.73 For 

purposes of this rule, H–2B employers 

and H–2B employers’ agents, 

representatives, and attorneys are not 

bona fide third parties.74 These 

exclusions are intended to prevent selfinterest and other biases from affecting 

the reliability of employer-provided 

surveys under this rule, which is also 

why privately-conducted employerprovided wage surveys are barred in all 

circumstances where the OES provides 

adequate data. Such concerns were 

raised in the comments of many worker 

advocates in response to the 2013 IFR. 

These concerns are particularly acute in 

the case of surveys conducted by H–2B 

employers, representatives, agents, and 

attorneys. Even H–2B employers, 

representatives, agents, and attorneys 

who are not directly involved in the 

application for which the survey is 

submitted are barred from conducting a 

wage survey under this final rule 

because we conclude that H–2B 

employers and the entities that 

represent them are likely to share 

common interests and biases that may 

affect the reliability of such surveys. See 

20 CFR 655.10(f)(4)(iii) of this final rule. 

This rule reflects our determination 

that DOL will accept non-state surveys 

only where the OES either does not 

cover the geographic area and 

occupation or does not adequately 

provide data about the job. In these 

limited circumstances in which the OES 

does not provide adequate data, it 

would be inappropriate to require the 

employer to submit only a stateconducted survey because such a survey 

may not be available. As discussed in 

Sec. II.C.3, where an OES wage 

adequately represents the occupation, 

thus making the exceptions in 20 CFR 

655.10(f)(1)(ii) or (iii) of this final rule 

inapplicable, a survey conducted and 

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75Available at http://www.bls.gov/respondents/

oes/pdf/forms/311000.pdf. 

76Before the 24-month standard was codified in 

2008, it appeared for years in the program’s 

prevailing wage guidance to the states. 77For purposes of comparison, OES survey 

estimates are based on data collected over a threeyear period, with the survey updated every six 

months based on more recent data. In addition, in 

the 1990s, the DOL recommended that state 

employment service agencies use their in-house 

wage surveys for only two years. See GAL 4–95 at 

pp. 9–10 (‘‘SESA Conducted Prevailing Wage 

Surveys . . . Length of Time Survey Results are 

Valid . . . SESAs may use survey results for up to 

2 years after the data are collected. After 2 years, 

the results of a new survey should be 

implemented.’’). 

issued by a state is the only type of 

employer-provided survey that may be 

submitted. See 20 CFR 655.10(f)(1)(i). 

This reflects our determination, 

discussed above, that use of privatelyconducted wage surveys would depress 

the wages of U.S. workers where OES 

wages adequately represent the 

occupation. 

g. This Final Rule Requires the Wage 

Reported by an Employer-Provided 

Survey To Include All Types of Pay as 

Set Out in Form ETA–9165 

This final rule requires that the wage 

reported from any employer-provided 

survey must include all types of ‘‘pay’’ 

to workers in the survey as required by 

new Form ETA–9165. Form ETA–9165 

uses the definition of pay from the OES. 

The OES requires surveys to consider as 

pay and convert into the hourly rate 

reported to the surveyor the base rate of 

pay, commissions, cost-of-living 

allowance, deadheading pay, guaranteed 

pay, hazard pay, incentive pay, 

longevity pay, piece rate, portal-toportal rate, production bonus, and tips. 

See, e.g., Occupational Report of Food 

Manufacturing (311000) at p.2, OMB 

No. 1220–0042.75 For example, if an 

employer guarantees a minimum hourly 

wage, but pays other types of monetary 

compensation, including tips, 

commission, or piece rate, in excess of 

the hourly guarantee, the total of the 

hourly guarantee and this additional 

compensation must be reported in the 

survey as the hourly wage paid. This 

requirement is needed for consistency 

with the OES. If we did not require 

inclusion in the survey wage reported of 

all of the types of pay reported to the 

OES, those limited surveys permitted by 

this final rule would necessarily 

undercut the OES by not reporting the 

complete wage paid. We understand 

that employers ordinarily calculate the 

wage paid for OES purposes by 

consulting payroll records. We conclude 

that, given this swift and accurate 

means of providing the complete rate of 

‘‘pay’’ in a survey, this requirement is 

not unduly burdensome. See 20 CFR 

655.10(f)(4)(v) of this final rule. 

h. The Final Rule Requires All 

Employer-Provided Surveys To Be the 

Most Recent Edition of the Survey and 

Be Based on Wages Paid No More Than 

24 Months Before the Date of 

Submission to DOL 

This final rule requires that the data 

reported in an employer-provided 

survey must be based on wages paid no 

more than 24 months before the survey 

is submitted to ETA. The relevant 

provision of the 2008 Rule at 20 CFR 

655.10(f)(3) (which was unchanged in 

the 2013 IFR until vacated by the CATA 

III decision) required surveys to be 

based on ‘‘recently collected data[,]’’ 

which, for ‘‘employer-conducted’’ 

surveys meant that the survey data must 

have been collected within 24 months of 

its submission.76 The standard was 

somewhat different for ‘‘published’’ 

surveys, which were permitted to rely 

on data published within 24 months of 

submission, but the data could be 

collected up to 24 months prior to 

publication. As a result, at the time they 

were submitted to the NPWC, published 

surveys could contain data collected up 

to 48 months before submission.77 To 

ensure that no employer submittedsurveys are based on out-of-date wage 

information, this final rule requires that 

all surveys, regardless of when or 

whether they are published, be based on 

wages paid not more than 24 months 

before submission. Thus, this final rule 

retains the 24-month standard that was 

applicable to employer-conducted 

surveys under the 2008 Rule. In 

addition, by eliminating the 

‘‘published’’ survey distinction, this 

final rule broadens the application of 

the 24-month rule to all employerprovided surveys. The final rule also 

changes the event that delineates the 24 

month period under earlier rules—the 

survey submitted to the NPWC must be 

based on wages paid, rather than wage 

data collected, within the 24 months 

prior to submission. 

This final rule updates and 

strengthens the data timeliness 

requirements from earlier rules, starting 

with the distinction between types of 

surveys. Over the years, the program 

and its stakeholders have developed a 

vocabulary referring to the source of 

surveys supporting prevailing wage 

requests. These include, for example, 

‘‘published,’’ ‘‘unpublished,’’ 

‘‘commercial,’’ and ‘‘private.’’ In the 

digital age, these distinctions are no 

longer as meaningful or as helpful for 

prevailing wage determination 

purposes. Today, technology often 

allows professional surveyors and users 

of surveys alike to post or make surveys 

widely available on the Internet, thus 

blurring the clear distinctions that once 

existed between published and private 

surveys. In addition, the survey 

landscape has changed dramatically, as 

the production of surveys has developed 

into an industry with multiple choices, 

prices, and arrangements that include, 

for example, survey search services, 

survey subscription services, traditional 

surveyors for hire, and more informal or 

customized surveys conducted directly 

by private employers or their agents for 

limited purposes. Thus, we have 

concluded that these distinctions made 

in the 2008 Rule are less relevant, and 

we eliminate them. 

This allows us to collapse the 

requirements on age of data. To be 

relevant and reliable, survey data must, 

among other things, be contemporary. 

Wage data, in particular, quickly 

becomes stale in a growing economy, 

and we have determined that data over 

24 months old is sufficiently out-of-date 

that it does not permit us to set an 

accurate prevailing wage in the area of 

intended employment. Moreover, in the 

information age, it is no longer 

appropriate for the foreign labor 

certification program to use employerprovided wage data that at times may be 

up to four years old. In addition, many 

professional wage survey services 

update their surveys annually or 

quarterly. Requiring wage data to be 

based on wages paid no more than 24 

months before submission in all 

instances, and accepting only the 

current edition of the survey, adds rigor 

and improves data quality for the 

limited class of employer-provided 

surveys permitted under this final rule. 

See 20 CFR 655.10(f)(5) of this final 

rule. 

D. Use of a Collective Bargaining 

Agreement Wage To Set the Prevailing 

Wage 

As discussed above, the 2011 Wage 

Rule would have required the prevailing 

wage to be set at the wage rate contained 

in a collective bargaining agreement 

only where the CBA rate was the highest 

of the OES mean, SCA, DBA, and CBA 

wage rates. In explaining its decision to 

set the prevailing wage at the CBA wage 

only where it is the highest applicable 

wage, DOL stated that ‘‘a CBA rate 

below the prevailing wage would not be 

a valid wage for purposes of the H–2B 

program.’’ 76 FR at 3455. 

In contrast, the 2008 Rule at 20 CFR 

655.10(b)(1), which was unchanged in 

the 2013 IFR, included the requirement 

that, unless the job opportunity was 

covered by a sports league’s rules or 

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78See http://www.foreignlaborcert.doleta.gov/

pwscreens.cfm. 

79The OES excludes attendance bonuses, back 

pay, draw, holiday bonuses, holiday premium pay, 

jury duty pay, lodging payments, meal payments, 

merchandise discounts, nonproduction bonuses, 

on-call pay, overtime pay, perquisites, profitsharing payments, relocation allowances, severance 

pay, shift differential, stock bonuses, tool 

allowance, tuition repayment, uniform allowances 

and weekend pay from the definition of pay. See 

http://www.bls.gov/oes/oes_ques.htm. 

80As under the 2008 Rule, this final rule at 20 

CFR 655.10(b)(1) excludes those occupations 

covered by a sports league’s rules or regulations. 

Prevailing wages for occupations covered by a 

sports league’s rules or regulations are set through 

the methodology in 20 CFR 655.10(i), as provided 

in the companion H–2B comprehensive rule 

entitled, Temporary Non-agricultural Employment 

of H–2B Aliens in the United States, published the 

same day as this final wage rule. 

regulations, ‘‘if the job opportunity is 

covered by a collective bargaining 

agreement (CBA) that was negotiated at 

arms’ length between the union and the 

employer, the wage rate set forth in the 

CBA is considered as not adversely 

affecting the wages of U.S. workers, that 

is, it is considered the ‘prevailing wage’ 

for labor certification purposes.’’ 20 CFR 

655.10(b)(1). Thus, these rules required 

the applicable CBA wage rate to be paid 

in all cases where the job opportunity is 

covered by the agreement, and would 

not require the H–2B employer to offer 

and pay a higher OES, SCA or DBA 

wage. 

In response to the 2013 IFR, we 

received several comments about the 

appropriate role of CBA wage rates in 

the H–2B program. Worker advocates, 

including a federation of unions and a 

worker advocate project representing a 

large consortium of worker advocate 

groups, asked the Departments to adopt 

the 2011 Wage Rule’s position on the 

application of the CBA wage rate to the 

H–2B prevailing wage, and require the 

CBA wage rate to be paid only where it 

is the highest wage. These comments 

generally reflected the concern that a 

wage rate is often only one of a package 

of terms and conditions of employment 

negotiated between an employer and the 

employees’ representative, and the 

negotiated wage rate may reflect a quid 

pro quo in exchange for another 

improved term in the package. 

After considering these comments, we 

adopt the approach under the 2008 

Rule, which was unchanged by the 2013 

IFR, in which the CBA wage rate is the 

prevailing wage where it is applicable to 

the H–2B employer’s job opportunity, 

regardless whether the OES mean is 

higher. When negotiated at arms’ length 

by a duly elected or recognized 

bargaining representative, the CBA wage 

accurately represents the ‘‘wage paid to 

similarly employed workers in a 

specific occupation in the area of 

intended employment[,]’’ which is 

DOL’s definition of the prevailing wage 

for the purposes of its labor certification 

programs.78 We are not persuaded by 

the argument that because the CBA 

wage may be offset by improvements in 

other terms and conditions of 

employment, the wage may not be an 

accurate representation of the prevailing 

wage. In setting the prevailing wage, we 

do not consider or adjust for the many 

factors that may influence a particular 

wage, beyond the occupational 

classification and the geographic area in 

which the H–2B job opportunity exists. 

Moreover, as with a CBA wage rate, the 

OES mean wage reflects only those 

forms of monetary compensation that 

the OES classifies as pay, and does not 

contain any non-monetary 

compensation that may exist in an 

occupation in a geographic area.79 We 

conclude that a prevailing wage rate 

based on a CBA wage negotiated at 

arms’ length by the employer and a 

proper employee representative does 

not have an adverse effect on the wages 

of U.S. workers because it reflects the 

agreement of the parties on the 

appropriate wage for the job 

opportunity. Accordingly, the CBA 

wage should be paid in all 

circumstances 80 where the job 

opportunity is covered by the 

agreement. See 20 CFR 655.10(b)(1) of 

this final rule. 

E. Implementation 

This final rule will apply to all new 

prevailing wage requests submitted on 

or after the effective date of this rule. 

Any prevailing wage request submitted 

before the effective date of this rule and 

pending at the time this rule is 

published will be processed under the 

standards of the rule in effect on the 

date that the prevailing wage request 

was filed. 

III. Administrative Information 

A. Executive Orders 12866 and 13563 

Executive Order 13563 directs 

agencies to propose or adopt a 

regulation only upon a reasoned 

determination that its benefits justify its 

costs; tailor the regulation to impose the 

least burden on society, consistent with 

achieving the regulatory objectives; and 

in choosing among alternative 

regulatory approaches, select those 

approaches that maximize net benefits. 

Executive Order 13563 recognizes that 

some benefits are difficult to quantify 

and provides that, where appropriate 

and permitted by law, agencies may 

consider and discuss qualitatively 

values that are difficult or impossible to 

quantify, including equity, human 

dignity, fairness, and distributive 

impacts. 

Under Executive Order 12866, the 

Office of Management and Budget’s 

(OMB’s) Office of Information and 

Regulatory Affairs determines whether a 

regulatory action is significant and, 

therefore, subject to the requirements of 

the Executive Order and review by 

OMB. 58 FR 51735. Section 3(f) of 

Executive Order 12866 defines a 

‘‘significant regulatory action’’ as an 

action that is likely to result in a rule 

that: (1) Has an annual effect on the 

economy of $100 million or more, or 

adversely affects in a material way a 

sector of the economy, productivity, 

competition, jobs, the environment, 

public health or safety, or State, local or 

tribal governments or communities (also 

referred to as economically significant); 

(2) creates serious inconsistency or 

otherwise interferes with an action 

taken or planned by another agency; (3) 

materially alters the budgetary impacts 

of entitlement grants, user fees, or loan 

programs, or the rights and obligations 

of recipients thereof; or (4) raises novel 

legal or policy issues arising out of legal 

mandates, the President’s priorities, or 

the principles set forth in the Executive 

Order. Id. 

This final rule is a significant 

regulatory action under section 3(f)(4) of 

Executive Order 12866. The results of 

the Departments’ cost-benefit analysis 

under this Part (III.A) are meant to 

satisfy the analytical requirements 

under Executive Orders 12866 and 

13563. These longstanding requirements 

ensure that agencies select those 

regulatory approaches that maximize 

net benefits—including potential 

economic, environmental, public health 

and safety, and other advantages; 

distributive impacts; and equity—unless 

otherwise required by statute. The 

Departments did not use the cost-benefit 

analysis under this Part (III.A) for 

purposes forbidden by or inconsistent 

with the Immigration and Nationality 

Act, as amended. 

The following analysis evaluates the 

expected impacts of this final rule. 

According to the principles contained in 

OMB Circular A–4, the baseline for the 

economic analysis of this rule is the 

situation most recently in effect, as 

described in detail below, which is 

based on the 2008 rule and the 2013 

IFR, as modified by the CATA III court 

decision on December 5, 2014. As 

discussed in the preamble, on March 4, 

2015, the district court in Perez vacated 

the 2008 rule, effectively ending DOL’s 

ability to issue any prevailing wage 

determinations (PWDs). On March 18, 

2015, the Perez court granted a 

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81BLS publishes data at the national level only 

when data for smaller geographic areas are not 

available. 

82Currently, employers are not using the H–2B 

program in the CNMI. In fiscal years 2013–14, DOL 

issued four PWDs for H–2B positions in the CNMI: 

Three based on the OES mean wages in Guam and 

one based on the DBA. However, no H–2B positions 

were certified during the same period. 

83A state survey refers to a survey conducted by 

any state agency, state college, or state university. 

84Source: A random sample of 524 employers 

with 10,282 certified H–2B positions between May 

1, 2013, and April 30, 2014. 

temporary stay of the vacatur order. The 

court ordered a further extension of its 

temporary stay on April 15, 2015. 

Therefore, the Departments conclude 

that it is most appropriate to assess the 

impact of this final rule compared to the 

situation that existed immediately prior 

to the court’s vacatur order and during 

the period of the stay, i.e., the rules 

governing the most recent PWDs 

actually issued. Accordingly, we 

compare this final rule to the situation 

under the 2008 rule and the 2013 IFR, 

as modified by CATA III (hereinafter 

referred to for ease of reference as ‘‘the 

2013 IFR’’ unless a more specific 

reference to the 2008 rule is required). 

The 2013 IFR establishes that when 

the prevailing wage determination 

(PWD) is based on the Occupational 

Employment Statistics (OES) survey, the 

wage rate is the arithmetic mean of the 

OES wages for a given geographic area 

of employment and occupation. The 

2013 IFR permits, but does not require, 

an employer to use a PWD based on 

employer-provided surveys approved by 

DOL or Service Contract Act (SCA) and 

Davis-Bacon Act (DBA) wage 

determinations. The 2013 IFR also 

requires the use of an applicable 

Collective Bargaining Agreement (CBA) 

wage rate, if one exists. Finally, the 

2013 IFR requires that employers offer 

H–2B workers and U.S. workers hired in 

response to the required H–2B 

recruitment a wage that is at least equal 

to the highest of the prevailing wage or 

the federal, state, or local minimum 

wage. 

On December 5, 2014, the Court of 

Appeals for the Third Circuit in CATA 

III vacated the provision of DOL’s 

regulation permitting the use of 

employer-provided surveys as a basis 

for PWDs. Accordingly, after that date, 

DOL no longer accepted such wage 

surveys when issuing PWDs. Therefore, 

under the baseline, H–2B employers can 

use PWDs based on the OES mean, the 

SCA or DBA wage rate, or the CBA wage 

rate if one exists. 

This final rule retains the OES mean 

as the default wage, does not permit the 

use of wage determinations under the 

SCA or DBA as H–2B wage sources, and 

establishes three circumstances in 

which employer-provided surveys may 

be accepted for PWDs. They are as 

follows: 

• The survey is submitted for a 

geographic area where the OES does not 

collect data, or in a geographic area 

where the OES provides an arithmetic 

mean only at a national level for 

workers employed in the Standard 

Occupation Classification (SOC); 81

• The job opportunity is not included 

within an occupational classification of 

the SOC system or is within an 

occupational classification of the SOC 

system designated as an ‘‘all other’’ 

classification; or 

• The survey was conducted and 

issued by a state, including any state 

agency, state college, or state university. 

The final rule continues to use the 

OES mean as the basis for setting H–2B 

prevailing wage rates. The OES mean 

wage rate conforms more closely to the 

wages paid by employers in a given 

geographic area of employment and 

occupation and, as discussed above, is 

the most appropriate wage to use to 

prevent adverse immigration-induced 

labor market distortions inconsistent 

with the requirements of the 

Immigration and Nationality Act. The 

use of the OES mean is consistent with 

the 2013 IFR in which we explained 

that the four-tier skill levels used in the 

2008 rule did not adequately ensure that 

H–2B workers are paid a wage that will 

not adversely affect the wages of 

similarly employed U.S. workers. 

Historically, SCA and DBA wage 

determinations developed for work on 

government contracts were used as 

sources for H–2B prevailing wages 

before the OES survey began to 

dominate the wage survey landscape. In 

the 2008 rule, SCA and DBA wage rates 

became permissive sources; employers 

could request their use as a source for 

PWDs among an array of sources. The 

2013 IFR retained the 2008 rule’s 

approach, allowing employers to select 

among the array of available sources 

(OES mean, SCA, DBA, or employerprovided surveys). 

The final rule does not permit the use 

of SCA and DBA wage determinations 

as sources for the H–2B prevailing wage. 

SCA and DBA wage determinations 

would still be applicable to and 

enforced in H–2B work covered by a 

government contract, but the prevailing 

wage issued by OFLC would be based 

on the OES mean, unless an employerprovided survey was submitted and 

approved. The primary benefits of this 

approach are the resulting streamlined 

PWD process, the removal of challenges 

associated with conforming the SCA 

and DBA wage determinations into the 

H–2B prevailing wage process, and the 

alleviation of the administrative burden 

associated with matching employers’ job 

descriptions submitted in prevailing 

wage requests with the appropriate SCA 

or DBA job classifications. 

The final rule allows the use of 

employer-provided surveys in limited 

circumstances for determining H–2B 

prevailing wages. First, in specific 

geographic locations where OES does 

not collect wage data or the OES reports 

only a national-level wage for the SOC, 

employers are permitted to use a survey 

that meets the methodological standards 

required by this final rule. The only 

geographic area where OES wage data 

are not collected is the Commonwealth 

of the Northern Mariana Islands 

(CNMI).82 Of the top ten occupations 

that account for approximately 70 

percent of all certified H–2B 

applications during FY 2013, workers 

engaged in ‘‘Forest and Conservation’’ 

and ‘‘Fishers and Related Fishing’’ 

related positions are the two 

occupations for which the OES reports 

a wage at the national level in some 

geographic areas. Based on this analysis, 

certified H–2B applications involving 

those two SOC codes in geographic 

areas where wages are reported only at 

the national level combined constitute 

no more than 2 percent of all such 

certified applications. 

Second, employers will be able to 

submit a survey if the job opportunity 

is not included in the SOC or is in a 

SOC ‘‘all other’’ category. Based on an 

analysis of approximately 9,250 H–2B 

PWDs issued during FY 2014, DOL 

issued a PWD using a SOC ‘‘all other’’ 

category in only 6 instances, 

constituting less than 0.1 percent of all 

PWDs issued. Therefore, DOL believes 

the category is largely unavailable and 

it has received H–2B certification 

requests that would meet this category 

only on very rare occasions. 

Third, the final rule permits 

employers to request a PWD based on a 

wage survey of all similarly employed 

workers in the job and area of intended 

employment where such a survey is 

conducted and issued by a state. Such 

a survey must also meet the new 

methodological standards contained in 

the final rule.83 Approximately 1 

percent of employers used state surveys 

as the basis for their PWDs under the 

2013 IFR.84

The 2008 rule and the 2013 IFR 

permitted employers to submit 

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85Source: H–2B PWDs issued FY 2012 and first 

quarter of FY 2014. 

86The types of pay that must be reported in the 

OES survey include: Base rate of pay, commissions, 

cost-of-living allowance, deadheading pay, 

guaranteed pay, hazard pay, incentive pay, 

longevity pay, piece rate, portal-to-portal rate, 

production bonus, and tips. 

employer-provided surveys as a wage 

source in lieu of the OES or other 

sources. The 2011 rule virtually 

eliminated the use of employerprovided surveys to set the prevailing 

wage in the H–2B program. 

After the issuance of the 2013 IFR and 

the establishment of the default wage at 

the OES mean, the use of employerprovided surveys grew exponentially. 

Pre-IFR use of these surveys included 

about 1 percent of all PWDs, while postIFR use climbed to about 30 percent of 

all PWDs.85 A review of some post-IFR 

employer-provided surveys used as 

wage sources indicated that, in many 

cases, employers reported wages of 

workers at the entry-level of the 

occupation. This may be a key reason 

why some employer-provided surveys 

have resulted in wages far below the 

OES mean. 

In addition, in many cases the survey 

methodology employed was insufficient 

to produce a reliable and valid wage for 

the occupation, largely because the 

current survey standards do not 

adequately promote valid and reliable 

results. Given the low quality of many 

of the surveys deemed acceptable under 

the existing wage guidance, we have 

determined that if employer-provided 

surveys continue to be available, 

additional methodological rigor is 

needed to support their continued use. 

Therefore, the final rule improves the 

methodological standards required for 

employer-provided surveys to improve 

their reliability and validity. Key 

improvements to the methodological 

standards generally are as follows: 

1. Require the survey to include the 

mean or median wage of all similarly 

employed workers in the area of 

intended employment, regardless of 

skill level, experience, education, and 

length of employment; 

2. Require the survey to make a 

reasonable, good faith attempt to contact 

all employers employing workers in the 

occupation and geographic area 

surveyed or conduct a randomized 

sample of such employers; 

3. Require the survey to be 

independently conducted and issued by 

a state and approved by a state official 

or, in the limited circumstances where 

the OES wage does not provide 

adequate data for the occupation or 

geographic area, a bona fide third party; 

4. Require the survey to include at 

least thirty employees and three 

employers in a sample; 

5. Require that surveys include all 

types of pay set out in the OES survey 

instrument, including payment of piece 

rates or production bonuses in the 

wages reported; 86

6. Require the wages reported in the 

survey be no more than twenty-four 

months old; 

7. Require that that surveys be 

conducted across industries that employ 

workers in the occupation; and 

8. Require that employers submit a 

new Employment and Training 

Administration (ETA) Form ETA–9165, 

which permits DOL to better assess the 

validity and reliability of the survey. 

Changes in the method of determining 

prevailing wages required by this final 

rule will result in additional 

compensation (i.e., transfer payments) 

for both H–2B workers and U.S. workers 

hired in response to the required 

recruitment. In addition, some 

employers will face additional costs to 

meet the higher methodological 

standards of the employer-provided 

survey. In this section, the Departments 

discuss the relevant costs, transfers, and 

benefits that may apply to this final 

rule. 

The impact of wage increases to 

employers was measured by comparing 

the prevailing wages under the final rule 

to the H–2B hourly wages under the 

baseline (i.e., the 2013 IFR, as modified 

by the CATA III court decision). Under 

this final rule, DOL would base PWDs 

on the OES mean, the CBA, and 

employer-provided surveys in very 

limited circumstances. For this 

economic analysis, DOL first calculated 

the increase in wages as the difference 

between the prevailing wages under the 

final rule and the H–2B hourly wages 

under the baseline for each certified or 

partially certified application. Next, 

DOL weighted this wage differential by 

the number of certified workers on each 

certified or partially certified 

application. DOL then summed those 

products to calculate the weighted 

average wage differential for all certified 

H–2B applications under the baseline. 

The equation below shows the 

formula that DOL used to calculate the 

weighted average wage differential 

(WWD). In the formula, Prevailing Wage 

is the arithmetic mean of the OESreported wage, the CBA wage, or the 

wage from an employer-provided survey 

under the final rule; and Certified H–2B 

Wage is the H–2B hourly wage under 

the baseline. 

Finally, to estimate the total transfer 

to all H–2B workers that results from the 

increase in wages due to the application 

of the final rule’s new PWD method, 

DOL multiplied the weighted average 

wage differential by the total number of 

H–2B workers in the United States in a 

given year. 

Under the current baseline, employers 

could select their prevailing wage 

source from the OES mean, the SCA or 

DBA wage, or the CBA wage if one 

exists. DOL believes employers that 

select prevailing wages based on the 

OES mean under the current baseline 

would continue to select the OES mean, 

except for those employers who elect to 

submit a survey in the three 

circumstances in which surveys are 

accepted for PWDs under the final rule. 

As a result, the final rule will have no 

impact on the employers who continue 

to use the OES mean. Employers who 

use the OES mean account for 


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87 In the first quarter of FY 2014, approximately 

65 percent of the total H–2B PWDs were based on 

the OES, 30 percent were based on employerprovided surveys, and 5 percent were based on SCA 

or DBA wage determinations. The 30 percent of the 

total PWDs that were based on employer-provided 

surveys before the December 5, 2014, CATA III 

decision are now issued based on the OES mean. 

Therefore, under the current baseline the OES mean 

accounts for about 95 percent of the total PWDs. 

88Although an employer-conducted survey may 

also be provided under this final rule if it is higher, 

we expect that an employer will only submit a 

survey to set the prevailing wage if the survey wage 

would be lower than the OES mean. 

89Even if the new wage rates from state surveys 

that meet the new methodological standards are 

expected to increase from the wage rates in the 

surveys that employers submitted under the 2013 

IFR before CATA III, these employers will 

experience wage decreases under this final rule 

because they currently use the OES mean as their 

prevailing wage source under the current baseline. 

90The OES level 2 wage is approximately the 

34th percentile on the OES wage distribution for 

that occupation in the applicable geographic area. 

The OES level 3 is the same as the OES median. 

See Sec. II.A.1, supra, for an explanation of the 

linear interpolation that set the four wage levels in 

H–2B. 

91At least some of the employers in these two 

categories that represent approximately 2 percent of 

all employers in the H–2B program would be able 

to submit an employer-provided survey that 

provides a lower wage than the OES mean. DOL 

could not take this into account in its analysis to 

estimate the changes in their prevailing wages due 

to data limitations on which employers are going 

to submit an employer-provided survey and the 

resulting wages. However, as discussed infra, DOL 

estimated the cost of conducting an employerprovided survey by a third party for all these 

employers and included it in the total cost of this 

rule, again presenting an upper-bound estimate of 

the cost of this final rule. 

approximately 95 percent of the total 

PWDs under the current baseline.87

One of the more challenging aspects 

of this economic analysis is accurately 

determining the expected prevailing 

wages for the employers that selected 

their prevailing wage sources from the 

SCA and DBA wage determinations 

(approximately 5 percent of employers 

under the current baseline). Employers 

that submitted an SCA or DBA wage 

determination as a source for their 

prevailing wage under the current 

baseline will no longer be able to use 

the SCA or DBA wage determinations 

under the final rule. Therefore, they can 

either request the OES mean wage as the 

prevailing wage source or submit a 

survey conducted and issued by a state 

or third party, if one is available and 

permissible and the wage from the 

survey is lower than the OES mean.88

However, DOL expects few, if any, 

employers will be able to use a state 

survey because they currently are 

available on a limited basis for the 

seafood industry, while the industries 

that use SCA or DBA wages as their 

prevailing wage sources are 

construction, forestry, and landscaping. 

A small number of employers in the 

forestry industry will be eligible to 

submit an employer-provided survey 

because OES data is reported only at the 

national level; however, due to the fact 

that employers in these industries 

typically operate on multi-state 

itineraries on a single H–2B certification 

and different prevailing wage rates exist 

within each area of employment within 

each itinerary, DOL does not have 

sufficient data to identify the employers 

that would be able to switch from the 

SCA or DBA to an employer-provided 

survey as their prevailing wage source 

under the final rule. Therefore, DOL 

assumed that all the employers that 

selected their prevailing wage sources 

from the SCA and DBA wage 

determinations will select the OES 

mean as their prevailing wage source 

under the final rule. This represents a 

conservative, upper-bound assumption. 

Employers that received a prevailing 

wage determination based on a survey 

under the 2013 IFR before the CATA III 

decision have not been able to use a 

survey as a prevailing wage source since 

that decision. Thus, the baseline for this 

analysis includes no surveys. However, 

employers will be able to use a survey 

conducted by a state if the survey meets 

the new methodological standards 

under the final rule. DOL cannot 

estimate with reasonable accuracy 

which employers will be able to submit 

a state survey that meets the new 

methodological standards under the 

final rule. Furthermore, no information 

exists that allows DOL to measure how 

much the new survey standards will 

affect the number of state surveys 

submitted or their resulting wages. 

Therefore, we are required to make 

certain assumptions, which are 

described in the following discussion. 

Employers that submitted a state 

survey as their PWD source under the 

2013 IFR prior to the CATA III decision 

will likely continue to submit such a 

survey if they can still obtain a wage 

rate that will cost them less than the 

OES mean. Otherwise, these employers 

will select the OES mean as their 

prevailing wage source. DOL anticipates 

that the wage rates from state surveys 

will increase because the final rule 

requires these surveys to include the 

mean wage of all similarly employed 

workers, while most state surveys 

submitted under the 2013 IFR included 

only entry-level workers.89 Therefore, it 

is expected that the new wage rates from 

state surveys that meet the new 

methodological standards will increase, 

but not to the level of the OES mean (the 

current baseline) or employers would 

not submit these surveys. Accordingly, 

it is assumed that for an employer that 

submitted a state survey under the 2013 

IFR before the CATA III decision, the 

new survey wage rate would increase to 

the OES wage level 2 if the wage rate 

from the survey that the employer 

previously submitted was below this 

level.90 It is also assumed that if an 

employer submitted a state survey 

under the 2013 IFR with a wage rate 

between OES wage levels 2 and 3, the 

new wage rate from a state survey that 

meets the new methodological 

standards would increase to the OES 

mean. Therefore, the employer would 

select the OES mean as the prevailing 

wage source rather than use a new state 

survey. Approximately 84 percent of 

previous state survey wage rates were 

between OES wage levels 1 and 2. 

Under certain circumstances, 

employers requesting H–2B 

certifications are permitted to use an 

employer-provided survey that meets 

the methodological standards required 

under this final rule. Such employers 

must be operating in geographic areas 

where the OES does not collect data or 

where the OES reports a wage for the 

SOC at the national level only. In 

addition, employers requesting H–2B 

certifications for an occupation not 

included in the SOC or designated as an 

‘‘all other’’ classification will be able to 

use an employer-provided survey. 

However, DOL does not have enough 

information to predict with reasonable 

accuracy which employers are going to 

submit the OES mean as the prevailing 

wage source or which employers are 

going to submit an employer-provided 

survey. In addition, DOL has no 

information about how much the new 

survey requirements will affect the 

number of surveys submitted or the 

resulting wages. Therefore, DOL 

estimated the upper-bound wage impact 

of this final rule by applying the OES 

mean wages to employers that 

potentially fall into the two categories 

described above. DOL estimated that 

employers in these two categories 

represent approximately 2 percent of all 

employers in the H–2B Program. 

Therefore, the upper-bound estimate of 

the impact would not substantially 

overstate the true wage impact of this 

final rule.91

DOL based its analysis on sample data 

drawn from a pool of 3,593 employers 

with 92,602 certified H–2B positions 

between May 1, 2013, and April 30, 

2014, to represent the most recent data 

available for the one-year period 

following the publication of the 2013 

IFR on April 24, 2013. A statistically 

valid sample that accurately represents 

the employers with certified H–2B 

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92 Depending on the scope of work required by H– 

2B workers, multiple PWDs may be needed if the 

work will be performed in multiple locations for a 

certified or partially certified application (such as 

those involving carnival or reforestation workers). 

While the DOL’s program database collects the total 

number of H–2B workers certified for each certified 

or partially certified application, the DOL has 

limited information about H–2B workers certified 

on the same application who were paid different 

prevailing wages because they performed work in 

multiple locations. In this analysis for the certified 

and partially certified applications with multiple 

prevailing wage rates, DOL used the average wage 

rate for each application. 

93The statistically valid minimum sample size 

with 95 percent confidence level and 5 percent 

margin of error is 347. DOL selected a much larger 

sample than 347 to strengthen the statistical results 

of the sample in this analysis. 

94Of the random sample of 524 employers 

following the publication of the 2013 IFR, 30 

percent of the total PWDs were based on employerprovided surveys. DOL replaced the prevailing 

wages from employer-provided surveys with the 

OES mean to accurately represent the current 

baseline. 

95 DOL weighted the wage differentials by the 

number of certified workers as opposed to the 

number of workers requested because a decrease in 

the number of workers granted may occur for 

several reasons, including the hiring of a U.S. 

worker in response to required recruitment. 

96The hourly compensation rate for a human 

resources manager is calculated by multiplying the 

hourly wage of $53.45 (derived from the 2013 

Occupational Employment Statistics) by 1.43 to 

account for private-sector employee benefits 

(Source: Bureau of Labor Statistics). Thus, the 

loaded hourly compensation rate for a human 

resources manager is $76.43. 

97 During the fiscal years 2013–14, there were on 

average 9,253 PWDs. DOL estimated that 2 percent 

of 9,253, or 185, could be based on private wage 

surveys under the final rule. 98Custom-Insight: Employee Survey Pricing, 

http://www.custominsight.com/employeeengagement-survey/pricing.asp. 

Salary Basics—Compensation Surveys, http://

www.salary.com/Small-Business-Advice/

advice.asp?part=par408 

HRA–NCA 2014 Benefit and Compensation 

Survey, http://www.hra-nca.org/sites/default/files/

survey-documents/

HRA%202014%20Order%20Form.pdf. 

99Hourly wages were derived from the 2013 

Occupational Employment Statistics (OES) wage 

data (http://www.bls.gov/oes/#data) and were 

multiplied by 1.43 to reflect a fully loaded wage 

rate. 

100Profit is the amount a business charges above 

their direct cost. Profit percentage varies widely by 

industry, and may also vary from business to 

business within the same industry. DOL used 10 

percent because profit typically varies from 3 to 12 

percent for the Corps of Engineers contracts. 

http://www.nws.usace.army.mil/Portals/27/docs/

construction/Preconstruction%20packet/Fig%208- 

2%20Modification%20Pricing%20Guidelines.pdf. 

positions between May 1, 2013, and 

April 30, 2014, was drawn to provide a 

timely measure of the change in hourly 

wages that would result from this final 

rule without having to include all the 

employers with certified H–2B positions 

following the publication of the 2013 

IFR. Consequently, DOL used a random 

sample of 524 employers with 10,282 

certified H–2B positions between May 1, 

2013, and April 30, 2014, and 

conducted a manual extraction of areaof-employment data from these certified 

H–2B applications, including the city, 

county, state, and zip code 

corresponding to the area of 

employment. DOL then obtained the 

prevailing wage rate actually certified, 

the source of the PWD, and the OES 

mean wage for each employer with 

certified H–2B positions in the random 

sample of 524 by SOC code and county 

of employment from H–2B program data 

between May 1, 2013, and April 30, 

2014.92 This random sample of 524 

employers is consistent with standard 

statistical methods and exceeds the 

minimum sample size requirement.93

Using the random sample of 524 

employers, DOL calculated the increase 

in wages as the difference between the 

baseline 94 and the Final rule. This 

differential was weighted by the number 

of certified workers on each certified or 

partially certified application.95 Those 

products were then summed to calculate 

the weighted average wage differential 

for the randomly selected sample of 524 

employers. DOL estimated that the 

changes in the method of determining 

wages under this final rule would result 

in an hourly wage increase of $0.16. The 

actual wage change for employers will 

vary depending on the current source 

for their prevailing wage 

determinations. For example, employers 

in the forestry industry may experience 

greater increases than the average wage 

increase of $0.16 because more 

employers in that industry previously 

selected SCA and DBA wage 

determinations as their prevailing wage 

sources. On the other hand, employers 

in the seafood industry may experience 

a wage decrease due to the fact that 

these employers have historically used 

state-conducted wage surveys not based 

on the SOC, and such surveys are 

allowed in certain circumstances under 

the final rule. Finally, many employers 

in the food services industry will 

experience no wage change because 

almost all employers in that industry 

already selected the OES mean wage as 

their prevailing wage source. 

The remaining sections of this 

analysis present the estimated costs of 

the final rule, the transfer payments 

associated with the increased wages 

resulting from the changes in the wage 

determination method, and the benefits 

of the final rule. 

1. Costs 

During the first year that this rule is 

in effect, employers would need to learn 

about the new rule and its requirements. 

DOL estimates this cost for a 

hypothetical entity interested in 

applying for H–2B workers by 

multiplying the time required to read 

the final rule and/or any educational 

and outreach materials explaining the 

wage calculation methodology under 

the rule by the average compensation of 

a human resources manager (SOC code 

11–3121).96 In the first year of the rule, 

if adopted, DOL estimates that the 

average business participating in the 

program will spend approximately one 

hour of staff time to read and review the 

new regulation. This amounts to 

approximately $76.43 ($76.43 × 1 hour) 

in labor costs in the first year. Therefore, 

DOL calculated the total estimated cost 

to employers with certified H–2B 

positions as $274,613 (1 hour × $76.43 

× 3,593). 

Employers are allowed to submit 

wage surveys as long as they meet the 

criteria set forth in the final rule. DOL 

estimated that approximately up to 185 

or 2 percent of H–2B PWDs could be 

based on private wage surveys.97

Because a survey can be valid for 24 

months, it is estimated that there will be 

93 new private wage surveys conducted 

by third parties for employers each year 

(93 = 185⁄2). 

Accordingly, these employers will 

incur additional costs. The cost of 

conducting a wage survey by a third 

party can vary widely depending on 

various factors, such as the scope of the 

survey, the survey methodology used, 

the number of respondents, and the 

nature of the sample. After reviewing 

pricing information provided by some 

survey service providers,98 DOL 

estimates that it would take a manager 

(SOC code 11–0000) 8 hours at $76.00 

per hour to review and a survey 

researcher (SOC code 19–3022) a total of 

40 hours at $36.58 per hour to randomly 

select at least 3 employers and 30 

employees (8 hours), collect their wage 

data (16 hours), calculate the hourly 

average wage (8 hours), and write a 

report and provide it to the employer (8 

hours).99 Therefore, the direct cost of 

conducting a wage survey by a third 

party is estimated at $2,071.20 (= $76 × 

8 + $36.58 × 40). DOL then added 10 

percent to $2,071.20 to account for a 

profit for the third party surveyor and 

the full cost of conducting a wage 

survey is $2,278.32 (= $2,071.20 × 

1.1).100 In addition, a human resources 

manager (SOC code 11–3120) at $76.43 

and a payroll and timekeeping clerk 

(SOC code 43–3051) at $27.40, would 

need to spend one hour and four hours, 

respectively, for each employer to 

provide wage information for all of its 

employees in the same occupation to 

the third-party agent. This amounts to 

an additional $186.03 for each employer 

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101This is an overestimation because some 

employers would have the option to use surveys 

published by the state or other employers in the 

same area of employment for a minor fee. Therefore, 

the actual number of employer-provided surveys 

conducted per year would likely be fewer than 93 

per year. 

102 During the fiscal years 2013–2014, there were 

on average 9,253 PWDs. DOL estimated based upon 

data from the random survey of 524 employers that 

1 percent of 9,253, or 93, would be based on state 

surveys under the final rule. 

103Hamid Azari-Rad et al., ‘‘State Prevailing 

Wage Laws and School Construction Costs,’’ 

Industrial Relations, vol. 42, No. 3 (July 2003), 

available at http://ohiostatebtc.org/wp-content/

uploads/2014/04/School_Costs_9.pdf. 

surveyed and $558.09 for all three 

employers surveyed. Therefore, the total 

cost of conducting an employerprovided survey that meets the 

requirements of this rule is estimated at 

$2,836.41 (= $2,278.32 + $558.09). 

Assuming that 93 employers will 

conduct a private wage survey by a 

third-party each year that is valid for 

two years, DOL estimates that the total 

cost of conducting a private wage survey 

per year at $263,786 annually ($2,836.41 

× 93).101

In addition to the 185 employers that 

will submit an employer-provided 

survey, DOL estimated that 

approximately 93 employers 102 will 

submit a state survey for their PWDs. As 

discussed in the PRA section of the 

preamble, for each submission, the 

employer’s human resource manager 

($76.43) will take 25 minutes to 

complete and sign Form ETA–9165 once 

the third-party surveyor’s survey 

researcher ($36.58) takes 50 minutes 

supplying the necessary information. 

The resulting cost for all 278 employers 

who submit a private or state survey is 

$17,352 [($76.43 × 116 hours) + ($36.58 

× 232 hours)]. 

The total cost of the final rule is 

estimated at $555,751, which is the sum 

of the regulatory familiarization cost 

($274,613), the cost of conducting 

private wage surveys ($263,786), and 

the cost of completing and signing Form 

ETA–9165 ($17,352). 

2. Transfers 

Transfer payments, as defined by 

OMB Circular A–4, are payments from 

one group to another that do not affect 

total resources available to society. 

Transfer payments are associated with a 

distributional effect but do not result in 

additional benefits or costs to society. 

The primary recipients of transfer 

payments reflected in this analysis are 

H–2B workers and U.S. workers hired in 

response to the required recruitment 

under the H–2B program. The primary 

payers of transfer payments reflected in 

this analysis are H–2B employers. 

Under the higher wage obligation 

established in this final rule, those 

employers who participate in the H–2B 

program are likely to be those who have 

the greatest need to access the H–2B 

program. 

Employment in the H–2B program 

represents a very small fraction of the 

total employment in the U.S. economy 

as well as in the industries represented 

in the program. The H–2B program is 

capped at 66,000 visas issued per year, 

but an H–2B worker who extends his/ 

her stay in H–2B status may remain in 

the country and not count against the 

cap. The 2013 IFR assumed that half of 

all such workers (33,000) in any year are 

able to extend their stay at least one 

additional year and that half of those 

workers (16,500) are able to extend their 

stay a third year. See 78 FR 24059 (April 

24, 2013). Therefore, DOL used 115,500 

as the total number of H–2B workers in 

a given year. The change in the method 

of determining the prevailing wage rate 

will result in transfers from H–2B 

workers to U.S. workers and from U.S. 

employers to both U.S. workers and H– 

2B workers. A transfer from H–2B 

workers to U.S. workers arises because, 

as wages increase for H–2B workers, 

jobs that would otherwise be occupied 

by H–2B workers may be more 

acceptable to a larger number of U.S. 

workers who will apply for the jobs. 

Additionally, faced with higher H–2B 

wages, some employers may find 

domestic workers relatively less 

expensive and may choose not to 

participate in the H–2B program and, 

instead, may employ U.S. workers. 

Although some of these U.S. workers 

may be drawn from other employment, 

some of them may currently be 

unemployed or out of the labor force 

entirely. DOL is not able to quantify 

these transfers with precision. Difficulty 

in calculating these transfers arises 

primarily from uncertainty about the 

number of U.S. workers currently 

collecting unemployment insurance 

benefits who would become employed 

as a result of this rule. 

To estimate the total transfer to H–2B 

workers that results from the increase in 

wages due to application of the final 

rule’s new method of determining the 

prevailing wage, DOL multiplied the 

weighted average wage differential 

($0.16) by the total number of H–2B 

workers estimated to be in the United 

States in a given year (115,500). For the 

number of hours worked per day, seven 

hours were used as typical. For the 

number of days worked, DOL assumed 

that the employer would retain the H– 

2B worker for the maximum time 

allowed (9 months or 274 days) and 

would employ the workers for five days 

per week. Thus, the total number of 

days worked equals 196 (274 × 5⁄7). The 

following equation shows the formula 

used to compute the total upper-bound 

impact per year: 

$0.16 (Weighted average wage differential) 

× 7 (Working hours per day) 

× 196 (Total number of of days worked) 

× 115,500 (Total number of H–2B workers) 

= $25.35 million (Total impact per year) 

We estimated the total impact 

associated with the increased wages at 

$25.35 million per year. These 

calculations also do not include the 

wage increase for U.S. workers hired in 

response to the required H–2B 

recruitment due to a lack of data 

regarding key points such as the number 

of U.S. workers hired in response to the 

employer’s recruitment efforts who 

would be entitled to the H–2B wage rate 

and what those workers currently earn. 

3. Benefits 

The Departments have determined 

that a new wage methodology is 

necessary for the H–2B program, 

particularly in light of the CATA III 

decision vacating the regulation 

authorizing the use of employerprovided surveys as a basis for PWDs. 

We want to ensure that the method for 

calculating the prevailing wage rate 

results in the appropriate prevailing 

wage necessary to ensure that U.S. 

workers are not adversely affected by 

the employment of H–2B workers, 

including when it results from a survey. 

The decision to discontinue use of the 

SCA and DBA wage determinations as a 

wage source and heighten the 

methodological standards of employerprovided surveys would help ensure 

that H–2B workers are paid a wage that 

will not adversely affect the wages of 

similarly employed U.S. workers. 

The increase in the prevailing wage 

rates induces a transfer from 

participating employers not only to H– 

2B workers but also to U.S. workers 

hired in response to the required H–2B 

recruitment. The increase in the 

prevailing wage rates is expected to 

improve workers’ productivity and the 

quality of their work, thereby mitigating 

the higher labor costs to employers. 

Furthermore, higher prevailing wages 

promote the retention of experienced 

workers and minimize the costs of 

hiring and training new employees, and 

also create an environment of increased 

compliance with workplace safety and 

workers’ compensation rules and 

regulations.103 These are important 

benefits and a key aspect of the 

Departments’ mandate to ensure that the 

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wages of similarly employed U.S. 

workers are not adversely affected by H– 

2B workers. 

The discontinued use of the SCA and 

DBA wage determinations as a source 

for the prevailing wage in the H–2B 

program offers additional benefits. The 

primary benefits of this approach are the 

streamlining of the PWD process, the 

removal of challenges associated with 

conforming the SCA and DBA wage 

determinations into the H–2B prevailing 

wage process, and the alleviation of the 

administrative burden associated with 

matching employers’ job descriptions 

submitted in prevailing wage requests 

with the appropriate SCA or DBA job 

classifications. 

A review of post-IFR employerprovided surveys used as wage sources 

indicated that, in many cases, 

employers report wages of workers at 

the entry level of the occupation instead 

of reporting the mean wage of all 

workers in the occupation as required 

when the prevailing wage is based on 

the OES. In addition, in many cases the 

survey methodology employed was 

insufficient to produce a reliable and 

valid wage for the occupation. 

Therefore, we have decided to raise the 

methodological standards required for 

employer-provided surveys to improve 

their reliability and validity so the 

prevailing wage rate adequately reflects 

the appropriate prevailing wage 

necessary to ensure that U.S. workers 

are not adversely affected by the 

employment of H–2B workers. 

B. Regulatory Flexibility Act 

The Regulatory Flexibility Act, 5 

U.S.C. 601 et seq. (RFA), imposes 

certain requirements on Federal agency 

rules that are subject to the notice and 

comment requirements of the APA, 5 

U.S.C. 553(b), and that are likely to have 

a significant economic impact on a 

substantial number of small entities. 

Under the APA, a general notice of 

proposed rulemaking is not required 

when an agency, for good cause, finds 

that notice and public comment thereon 

are impracticable, unnecessary, or 

contrary to the public interest. 5 U.S.C. 

553(b)(B). The Departments’ interim 

final rule issued in 2013 was exempt 

from the notice and comment 

requirements of the APA because DOL 

and DHS made a good cause finding in 

the preamble of that rule, 78 FR at 

24055, that a general notice of proposed 

rulemaking is impracticable and 

contrary to the public interest under 5 

U.S.C. 553(b)(B). Therefore, the 

requirements of the RFA applicable to 

notices of proposed rulemaking, 5 

U.S.C. 603, did not apply to that rule. 

Similarly, the requirements of the RFA 

that pertain to final rules, 5 U.S.C. 604, 

issued by an agency following the 

publication of a proposal on which 

notice and comment is required by the 

APA, 5 U.S.C. 553(b), are inapplicable 

to this final rule. Therefore, the 

Departments are not required to either 

certify that the rule would not have a 

significant economic impact on a 

substantial number of small entities or 

conduct a regulatory flexibility analysis. 

Consistent with the policy of the RFA, 

the Departments encouraged the public 

to submit comments that suggested 

alternative rules that would accomplish 

the stated purpose of the 2013 IFR and 

minimize the impact on small entities. 

We received just a handful of comments 

responsive to this request, including one 

from the Office of the Chief Counsel for 

Advocacy of the Small Business 

Administration (SBA Advocacy). SBA 

Advocacy noted that the IFR would 

suddenly increase the wages that small 

businesses must pay to hire foreign 

workers under the H–2B program midseason, and that employers have told 

SBA Advocacy that the IFR would have 

significant economic impacts on their 

businesses because they operate on 

narrow margins. In particular, SBA 

Advocacy obtained input from employer 

associations in landscaping, seafood 

processing, and lodging industries, and 

all those associations asserted that the 

higher labor costs resulting from the 

2013 IFR negatively impacted their 

businesses. The Departments received 

similar comments from some small 

businesses indicating that the 2013 IFR 

unnecessarily encumbered those 

businesses with increased wage costs. 

We also recognize that wage increases 

may impose unique burdens on small 

businesses. However, as further 

explained in Section II.A.4 above, a 

prevailing wage that protects all U.S. 

workers from adverse effect is a legal 

requirement, and this requirement could 

not be met by setting a lower wage for 

small businesses. As previously 

discussed, use of the OES mean best 

meets the Departments’ obligation to 

protect against adverse effect, whereas 

setting the prevailing wage at a 

threshold based on artificial skill levels 

likely distorts the labor market for U.S. 

workers, driving down wages. Wage 

increases from the 2013 IFR resulted for 

some H–2B employers, but most H–2B 

employers now have experience paying 

workers at the OES mean. Moreover, 

most H–2B employers now have 

experience paying workers at the OES 

mean, and DOL concludes it is likely 

that H–2B employers have incorporated 

the new wage requirements, which were 

established in the H–2B program two 

years ago. This final rule is estimated to 

increase wages on average only $0.16 

per hour above the levels that have been 

required for two years under the 2013 

IFR. 

C. Paperwork Reduction Act 

The final rule modifies the standards 

associated with the submission by 

employers of surveys as an alternative to 

establishing the prevailing wage based 

on the OES survey. As noted above, we 

are modifying the H–2B regulation to set 

new standards for permissible 

employer-provided surveys in order to 

improve their reliability and validity. 

The new standards require: (1) The 

survey to include the mean or median 

wage of all workers regardless of skill or 

experience; (2) the survey collection 

must be independently conducted and 

issued by a state and approved by a state 

official or, in limited circumstances, a 

bona fide third party; (3) that surveyors 

make a reasonable good-faith effort to 

survey all employers in the occupation 

and area surveyed or base the survey on 

a random sample; (4) the survey to 

include at least 3 employers and 30 

employees in a sample; (5) that any 

wage survey submitted report all types 

of pay; (6) that surveys be conducted 

across industries that employ workers in 

the occupation; (7) that wages paid and 

reported in the survey be no more than 

24 months old; and (8) that employers 

submit new Form ETA–9165 that 

permits DOL to better assess the validity 

and reliability of the survey. 

New Form ETA–9165, which is 

attached as an Appendix to this final 

rule, asks the employer to respond to a 

number of questions about the 

underlying methodology used to 

develop the wage surveyed. Most of the 

questions require a yes/no response or 

the selection of a response from an array 

of two to four standard choices. There 

are a few questions that require a fill-inthe-blank response, such as the survey 

name, title of the job opportunity, the 

duties of the job, the area of intended 

employment, and the resulting wage 

found by the survey. The responses to 

all of the questions on the form are 

intended to provide that the third-party 

who conducts the survey for the H–2B 

employer complies with the new survey 

standards, that the employer is aware of 

the compliance standards and certifies 

that they have been met, and permits 

the agency to more easily assess 

compliance. Once the survey is 

designed and conducted with the new 

standards in mind, the third-party 

surveyor should have at its ready 

disposal the responses to the questions 

in the new Form ETA–9165, and should 

be able to transmit them to the employer 

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quickly so that the employer may 

complete the form. 

Form ETA–9165 is an information 

collection subject to the Paperwork 

Reduction Act of 1995 (PRA), 44 U.S.C. 

3501 et seq. and subject to Office of 

Management and Budget (OMB) review 

and clearance under the PRA. In order 

to have the information collections take 

effect on the same dates as all other 

parts of the Final Rule, DOL submitted 

an ICR to OMB under the emergency 

processing procedures codified in 

regulations 5 CFR 1320.13. OMB 

approved the information collection for 

6 months, during which time DOL will 

publish Notices in the Federal Register 

that invite public comment on the 

collection requirements, in anticipation 

of extending the ICR. 

Overview of Information Collection 

Type of Review: New. 

Agency: Employment and Training 

Administration. 

Title: Employer-Provided Survey 

Certification to Accompany H–2B 

Prevailing Wage Determination Request 

Based on a Non-OES Survey. 

OMB Number: 1205–NEW. 

Agency Number(s): Form ETA–9165. 

Annual Frequency: On occasion. 

Affected Public: Individuals or 

Households, Private Sector—businesses 

or other for profits, Government, State, 

Local and Tribal Governments. 

Total Respondents: 556. 

Total Responses: 556. 

Estimated Total Burden Hours: 75 

minutes. DOL views the burden on 

respondents to complete the Form ETA– 

9165 as a two-step process. DOL 

concludes that third-party surveyors, 

including States, will take, on average, 

50 minutes to compile the information 

necessary for the employer to complete 

Form ETA–9165. In turn, DOL 

concludes that employers will take, on 

average, 25 minutes to complete and 

sign Form ETA–9165 once the thirdparty surveyor supplies the necessary 

information. 

Total Burden Calculation: 348. 

Total Burden Cost (capital/startup): 0. 

Total Burden Cost (operating/

maintaining): 0. 

D. Unfunded Mandates Reform. 

Executive Order 12875—This rule 

will not create an unfunded Federal 

mandate upon any State, local or tribal 

government. 

Unfunded Mandates Reform Act of 

1995—This rule does not include any 

Federal mandate that may result in 

increased expenditures by State, local, 

and tribal governments, in the aggregate, 

of $100 million or more. It also does not 

result in increased expenditures by the 

private sector of $100 million or more, 

because participation in the H–2B 

program is entirely voluntary. 

E. The Congressional Review Act 

The Congressional Review Act (5 

U.S.C. 801 et seq.) requires rules to be 

submitted to Congress before taking 

effect. We will submit to Congress and 

the Comptroller General of the United 

States a report regarding the issuance of 

the final rule prior to its effective date, 

as required by 5 U.S.C. 801(a)(1). 

F. Executive Order 13132—Federalism 

The Departments have reviewed this 

final rule in accordance with E.O. 13132 

regarding federalism and has 

determined that it does not have 

federalism implications. The rule does 

not have substantial direct effects on 

States, on the relationship between the 

States, or on the distribution of power 

and responsibilities among the various 

levels of Government as described by 

E.O. 13132. Therefore, the Departments 

have determined that this rule will not 

have a sufficient federalism implication 

to warrant the preparation of a summary 

impact statement. 

G. Executive Order 13175—Indian 

Tribal Governments 

This final rule was reviewed under 

E.O. 13175 and determined not to have 

tribal implications. The final rule does 

not have substantial direct effects on 

one or more Indian tribes, on the 

relationship between the Federal 

Government and Indian tribes, or on the 

distribution of power and 

responsibilities between the Federal 

Government and Indian tribes. As a 

result, no tribal summary impact 

statement has been prepared. 

H. Assessment of Federal Regulations 

and Policies on Families 

Section 654 of the Treasury and 

General Government Appropriations 

Act, enacted as part of the Omnibus 

Consolidated and Emergency 

Supplemental Appropriations Act of 

1999 (Pub. L. 105–277, 112 Stat. 2681) 

requires the Departments to assess the 

impact of this final rule on family wellbeing. A rule that is determined to have 

a negative effect on families must be 

supported with an adequate rationale. 

The Departments have assessed this 

final rule and determined that it will not 

have a negative effect on families. 

I. Executive Order 12630—Government 

Actions and Interference With 

Constitutionally Protected Property 

Rights 

This final rule is not subject to E.O. 

12630, Governmental Actions and 

Interference with Constitutionally 

Protected Property Rights, because it 

does not involve implementation of a 

policy with takings implications. 

J. Executive Order 12988—Civil Justice 

This final rule has been drafted and 

reviewed in accordance with E.O. 

12988, Civil Justice Reform, and will not 

unduly burden the Federal court 

system. The Departments have 

developed the final rule to minimize 

litigation and provide a clear legal 

standard for affected conduct, and has 

reviewed the rule carefully to eliminate 

drafting errors and ambiguities. 

K. Plain Language 

The Departments have drafted this 

final rule in plain language. 

List of Subjects 

8 CFR Part 214 

Administrative practice and 

procedure, Aliens, Cultural exchange 

programs, Employment, Foreign 

officials, Health professions, Reporting 

and recordkeeping requirements, 

Students. 

20 CFR Part 655 

Administrative practice and 

procedure, Employment, Employment 

and training, Enforcement, Foreign 

workers, Forest and forest products, 

Fraud, Health professions, Immigration, 

Labor, Longshore and harbor work, 

Migrant workers, Nonimmigrant 

workers, Passports and visas, Penalties, 

Reporting and recordkeeping 

requirements, Unemployment, Wages, 

Working conditions. 

Department of Homeland Security 

8 CFR Chapter I 

Authority and Issuance 

Accordingly, for the reasons stated in 

the joint preamble, the interim final rule 

amending 8 CFR part 214, which was 

published at 78 FR 24047 on April 24, 

2013, is adopted as a final rule without 

change. 

Department of Labor 

Employment and Training 

Administration 

20 CFR Chapter V 

Authority and Issuance 

Accordingly, for the reasons stated in 

the joint preamble, part 655 of title 20 

of the Code of Federal Regulations is 

amended as follows: 

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24184 Federal Register / Vol. 80, No. 82 / Wednesday, April 29, 2015 / Rules and Regulations 

PART 655—TEMPORARY 

EMPLOYMENT OF FOREIGN 

WORKERS IN THE UNITED STATES 

■ 1. The authority citation for part 655 

continues to read in part as follows: 

Authority: Section 655.0 issued under 8 

U.S.C. 1101(a)(15)(E)(iii), 1101(a)(15)(H)(i) 

and (ii), 8 U.S.C. 1103(a)(6), 1182(m), (n) and 

(t), 1184(c), (g), and (j), 1188, and 1288(c) and 

(d); sec. 3(c)(1), Pub. L. 101–238, 103 Stat. 

2099, 2102 (8 U.S.C. 1182 note); sec. 221(a), 

Pub. L. 101–649, 104 Stat. 4978, 5027 (8 

U.S.C. 1184 note); sec. 303(a)(8), Pub. L. 102– 

232, 105 Stat. 733, 1748 (8 U.S.C. 1101 note); 

sec. 323(c), Pub. L. 103–206, 107 Stat. 2428; 

sec. 412(e), Pub. L. 105–277, 112 Stat. 2681 

(8 U.S.C. 1182 note); sec. 2(d), Pub. L. 106– 

95, 113 Stat. 1312, 1316 (8 U.S.C. 1182 note); 

29 U.S.C. 49k; Pub. L. 107–296, 116 Stat. 

2135, as amended; Pub. L. 109–423, 120 Stat. 

2900; 8 CFR 214.2(h)(4)(i); and 8 CFR 

214.2(h)(6)(iii). 

* * * * * 

■ 2. Amend § 655.10 by adding 

paragraphs (b) and (f) to read as follows: 

§ 655.10 Determination of prevailing wage 

for temporary labor certification purposes. 

* * * * * 

(b) Determinations. Prevailing wages 

shall be determined as follows: 

(1) Except as provided in paragraph (i) 

of this section, if the job opportunity is 

covered by a collective bargaining 

agreement (CBA) that was negotiated at 

arms’ length between the union and the 

employer, the wage rate set forth in the 

CBA is considered as not adversely 

affecting the wages of U.S. workers, that 

is, it is considered the ‘‘prevailing 

wage’’ for labor certification purposes. 

(2) If the job opportunity is not 

covered by a CBA, the prevailing wage 

for labor certification purposes shall be 

the arithmetic mean of the wages of 

workers similarly employed in the area 

of intended employment using the wage 

component of the BLS Occupational 

Employment Statistics Survey (OES), 

unless the employer provides a survey 

acceptable to OFLC under paragraph (f) 

of this section. 

* * * * * 

(f) Employer-provided survey. (1) If 

the job opportunity is not covered by a 

CBA, or by a professional sports league’s 

rules or regulations, the NPWC will 

consider a survey provided by the 

employer in making a Prevailing Wage 

Determination only if the employer 

submission demonstrates that the 

survey falls into one of the following 

categories: 

(i) The survey was independently 

conducted and issued by a state, 

including any state agency, state college, 

or state university; 

(ii) The survey is submitted for a 

geographic area where the OES does not 

collect data, or in a geographic area 

where the OES provides an arithmetic 

mean only at a national level for 

workers employed in the SOC; 

(iii)(A) The job opportunity is not 

included within an occupational 

classification of the SOC system; or 

(B) The job opportunity is within an 

occupational classification of the SOC 

system designated as an ‘‘all other’’ 

classification. 

(2) The survey must provide the 

arithmetic mean of the wages of all 

workers similarly employed in the area 

of intended employment, except that if 

the survey provides a median but does 

not provide an arithmetic mean, the 

prevailing wage applicable to the 

employer’s job opportunity shall be the 

median of the wages of workers 

similarly employed in the area of 

intended employment. 

(3) Notwithstanding paragraph (f)(2) 

of this section, the geographic area 

surveyed may be expanded beyond the 

area of intended employment, but only 

as necessary to meet the requirements of 

paragraph (f)(4)(ii) of this section. Any 

geographic expansion beyond the area 

of intended employment must include 

only those geographic areas that are 

contiguous to the area of intended 

employment. 

(4) In each case where the employer 

submits a survey under paragraph (f)(1) 

of this section, the employer must 

submit, concurrently with the ETA 

Form 9141, a completed Form ETA– 

9165 containing specific information 

about the survey methodology, 

including such items as sample size and 

source, sample selection procedures, 

and survey job descriptions, to allow a 

determination of the adequacy of the 

data provided and validity of the 

statistical methodology used in 

conducting the survey. In addition, the 

information provided by the employer 

must include the attestation that: 

(i) The surveyor either made a 

reasonable, good faith attempt to contact 

all employers employing workers in the 

occupation and geographic area 

surveyed or conducted a randomized 

sampling of such employers; 

(ii) The survey includes wage data 

from at least 30 workers and three 

employers; 

(iii) If the survey is submitted under 

paragraph (f)(1)(ii) or (iii) of this section, 

the collection was administered by a 

bona fide third party. The following are 

not bona fide third parties under this 

rule: Any H–2B employer or any H–2B 

employer’s agent, representative, or 

attorney; 

(iv) The survey was conducted across 

industries that employ workers in the 

occupation; and 

(v) The wage reported in the survey 

includes all types of pay, consistent 

with Form ETA–9165. 

(5) The survey must be based upon 

recently collected data: The survey must 

be the most current edition of the survey 

and must be based on wages paid not 

more than 24 months before the date the 

survey is submitted for consideration. 

* * * * * 

Note: This appendix will not appear 

in the Code of Federal Regulations. 

Appendix 

BILLING CODE 4510–FP–P–9111,–97–P 

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OMB Approval: 1205-NEW 

Expiration Date: xxlxxlxxxx 

Employer-Provided Survey Attestations to Accompany 

H-28 Prevailing Wage Determination Request Based on a Non-OES Survey 

(20 CFR 655.1 O(f)) 

Form ETA-9165 

U.S. Department of Labor 

Please read and review the instructions carefully before completing this form and print legibly. A copy of the instructions can 

be found at http:l/www.foreignlaborcert.doleta.gov/. Those items marked with* are required. Items marked with§ are required 

if the condition listed is met. 

5. Requestor Point-of-Contact Information (from Form ETA-9141, Section B) 

1 . Contact's last (family) name * 2. First (given) name* 3. Middle name(s) * 

4. Telephone number * 5. Extension 16. Fax Number 

7. E-Mail Address 

6. Employer Information (from Form ETA-9141, Section C) 

7. Legal business name * 

8. Trade name/Doing Business As (DBA), if applicable 

9. Telephone number* 4. Extension 

10. Federal Employer Identification Number (FEIN fr 6. NAICS code (must be at least 4-digits) * 

IRS)* 
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11. Employer-Provided Survey Information 

12. Survey name or title* 

2. A collective bargaining agreement is applicable to the job opportunity? * DYes D No 

3. A professional sports league's rules or regulations are applicable to the job opportunity? * DYes D No 

4. The survey falls within the following permissible category for submission (select only one) * 

D 4a. The survey was independently conducted and issued by a state, including any state agency, state college, or state 

university. 

D 4b. The survey is submitted for a geographic area where the OES does not collect data, or in a geographic area where 

the OES provides an arithmetic mean only at a national level for workers in the SOC. 

D 4c. The job opportunity is not included within an occupational classification of the SOC system; or the job opportunity is 

within an occupational classification of the SOC system designated as an "all other'' classification 

5. If the survey was independently conducted by a state, including any state agency, state college or state 

university under question 4a, provide responses to questions 5a-5b. § 

5a. Name of state agency, state college or state university. 

5b. Name of the state official approving the survey. 

Contact's last (family) name First (given) name 
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13. Employer-Provided Survey Information (continued) 

6. If the survey is eligible under question 4b or 4c, provide responses to questions 6a-6c § 

6a. The collection of data was collected by a third party permitted by ETA regulations at 20 CFR DYes D No 

655.1 O(f)(4)(iii) and no data for the survey was collected by any H-28 employer or any H-28 

employer's agent, representative, or attorney. 

6b. Name of third party surveyor. 

6c. Name of the official representative of the third party surveyor who approved the survey. 

Contact's last (family) name First (given) name 

7. The survey is based on wages paid 24 months or less before the date on which the survey 

DYes D No 

was submitted to ETA.* 

8. This is the most recent edition of the survey. (Answer "yes" if this is the only edition of the survey.) DYes D No * 

D. Relationship to job opportunity listed on the Form ETA-9141 

1. Title of job(s) included in the survey* 

14. Duties of the job(s) included in the survey (submit an attachment if more space is required): * 
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15. Identify the area of intended employment, as that term is defined in 20 CFR 655.5, covered by the survey. 

* 

I 0 Yes 0 No 4. The survey was expanded to include workers beyond the area of intended employment * 

4a. If yes to question 4, the geographic area surveyed was§ 

4b. If yes to question 4, the survey was expanded beyond the area of intended employment (check all that apply)§ 

0 to meet the 30 worker minimum. 

0 to meet the 3 employer minimum. 

0 The area surveyed was expanded for another reason. Provide below: 
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E. Survey Methodology 

1. It was determined that employers employ workers in the occupation and geographic area surveyed. * 

16. The following sources were used to determine the number of employers employing workers in the occupatio 

and 

geographic area surveyed: * 

3. Did the surveyor attempt to contact all employers employing workers in the occupations D All Employers D Sample 

in the geographic area surveyed or a sample of employers in the geographic area? * 

3a. If a sample, was the sample selected randomly? § DYes D No 

3b. If a sample, provide a brief summary of the procedures used to randomize the sample: § 

4. The surveyor attempted to solicit responses from employers in conducting the survey. * 

5. For each responding employer, the survey includes the wages of all workers in the DYes D No 

occupation regardless of skill level or experience, education, and length of employment. * 

6. The survey includes data collected across industries that employ workers in the DYes D No 

occupation. * 

7. The survey reflects the mean wage for all workers it covers. * DYes D No 

7a. The mean wage is$ __ . __ per (specify whether hourly, weekly, or monthly). § 

8. The survey reflects the median wage for all workers it covers. * DYes D No 
24190 Federal Register / Vol. 80, No. 82 / Wednesday, April 29, 2015 / Rules and Regulations 

Signed: at Washington, DC this 22nd of 

April, 2015. 

Thomas E. Perez, 

Secretary of Labor. 

Signed: at Washington, DC this 22nd of 

April, 2015. 

Jeh Charles Johnson, 

Secretary of Homeland Security. 

[FR Doc. 2015–09692 Filed 4–28–15; 8:45 am] 

BILLING CODE 4510–FP–C; 9111–97–C 


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