90646 Federal Register / Vol. 89, No. 222 / Monday, November 18, 2024 / Proposed Rules 

any determination, the sponsor must 

provide that information within 30 

days. 

■ 11. Add § 77.12 to read as follows: 

§ 77.12 Conditions and limitations 

requirements. 

Except for structures that have 

received an FAA Determination of No 

Hazard to Air Navigation prior to the 

effective date of a final rule or any 

meteorological tower with the highest 

point of the structure at least 50 feet 

AGL up to and including 200 feet AGL 

at its site for which construction is 

complete prior to the effective date of a 

final rule, a sponsor must comply with 

the conditions and limitations 

contained in its Determination of No 

Hazard to Air Navigation. 

■ 12. Amend § 77.15 by revising 

paragraph (e)(1) to read as follows: 

§ 77.15 Scope. 

* * * * * 

(e) * * * 

(1) Available for public use and is 

listed in the Chart Supplement U.S., 

Chart Supplement Alaska, or Chart 

Supplement Pacific of the U.S. 

Government Flight Information 

Publications; or 

* * * * * 

■ 13. Revise § 77.27 to read as follows: 

§ 77.27 Initiation of studies. 

The FAA will conduct an aeronautical 

study when: 

(a) Notice is required under § 77.9 and 

has been received; or 

(b) The FAA determines a study is 

necessary. All other Notices filed by the 

public outside of these parameters will 

be screened within the automated OE/ 

AAA system and, if appropriate, 

provided an electronic letter response 

that indicates that no notice is required 

for the said proposal or alteration, and 

thus the FAA has no objections to the 

proposal at this time. 

■ 14. Amend § 77.29 by revising 

paragraph (b) to read as follows: 

§ 77.29 Evaluating aeronautical effect. 

* * * * * 

(b) If a sponsor withdraws the 

proposed construction or alteration or 

revises it so that it is no longer 

identified as an obstruction, or if no 

further aeronautical study is necessary, 

the FAA may terminate the study. 

■ 15. Amend § 77.31 by revising 

paragraph (d)(4) to read as follows: 

§ 77.31 Determinations. 

* * * * * 

(d) * * * 

(4) Marking and lighting 

requirements, as appropriate. 

* * * * * 

■ 16. Add § 77.32 to read as follows: 

§ 77.32 Marking and lighting requirements. 

A sponsor may request a modification 

or deviation from the marking and 

lighting requirements in a determination 

by submitting FAA Form 7460–1, Notice 

of Proposed Construction or Alteration. 

■ 17. Revise § 77.33 to read as follows: 

§ 77.33 Effective period of determinations. 

(a) The effective date of a 

determination not subject to 

discretionary review under § 77.37(b) is 

the date of issuance. The effective date 

of all other determinations for a 

proposed or existing structure is 40 days 

from the date of issuance, provided a 

valid petition for review has not been 

received by the FAA. If a valid petition 

for review is filed, the determination 

will not become final pending 

disposition of the petition. 

(b) Except as provided in paragraphs 

(c) and (d) of this section, unless 

extended, revised, or terminated, each 

Determination of No Hazard to Air 

Navigation issued under this subpart 

expires 18 months after the effective 

date of the determination, or on the date 

the proposed construction or alteration 

is abandoned, whichever is earlier. 

(c) Unless extended, revised, or 

terminated, each Determination of No 

Hazard to Air Navigation issued under 

this subpart regarding a proposed 

permanent wind energy system, 

including an airborne wind energy 

system and associated meteorological 

towers, expires 36 months after the 

effective date of the determination or on 

the date the proposed construction or 

alteration is abandoned, whichever is 

earlier. A meteorological tower is 

associated with a wind energy system 

when it is included in a wind energy 

systems project and is intended to be 

permanent. A meteorological tower is 

permanent when it is intended to 

remain in place for the duration of its 

lifecycle. 

(d) A Determination of Hazard to Air 

Navigation has no expiration date. 

■ 18. Amend § 77.35 by revising the 

introductory text of paragraph (a), and 

paragraphs (c)(1) through (3) to read as 

follows: 

§ 77.35 Extensions, terminations, 

revisions, and corrections. 

(a) A sponsor may petition the FAA 

to revise or reconsider the 

determination based on new facts or to 

extend the effective period of the 

determination, provided that: 

* * * * * 

(c) * * * 

(1) The sponsor submits evidence that 

an application for a construction 

permit/license was filed with the FCC 

for the associated site within six months 

of issuance of the determination; and 

(2) The sponsor submits evidence that 

additional time is warranted because of 

FCC requirements; and 

(3) Where the FCC issues a 

construction permit, a final 

Determination of No Hazard to Air 

Navigation is effective until the date 

prescribed by the FCC for completion of 

the construction. If a sponsor needs to 

extend the original FCC completion 

date, they must also request an 

extension of the FAA determination. 

* * * * * 

■ 19. Revise § 77.37 to read as follows: 

§ 77.37 General. 

(a) A petition for a discretionary 

review of a determination, revision, or 

extension of a determination issued by 

the FAA may be made by: 

(1) The sponsor; 

(2) Any person that provided a 

substantive aeronautical comment on a 

proposal in an aeronautical study; 

(3) Any person that provided a 

substantive aeronautical comment on 

the proposal but was not given an 

opportunity to state it. 

(b) A petition for discretionary review 

for a Determination of No Hazard that is 

issued for a temporary structure, 

marking and lighting requirements, or 

when a proposed structure or alteration 

does not exceed obstruction standards 

contained in subpart C of this part may 

not be filed by any person. 

Issued under authority provided by 49 

U.S.C. 106(f), 44701(a)(5) and 44718 in 

Washington, DC. 

Alyce Hood-Fleming, 

Vice President, Mission Support Services, Air 

Traffic Organization. 

[FR Doc. 2024–26741 Filed 11–15–24; 8:45 am] 

BILLING CODE 4910–13–P 

DEPARTMENT OF LABOR 

Employment and Training 

Administration 

20 CFR Part 655 

[DOL Docket No. ETA–2024–0001] 

RIN 1205–AC15 

Employer-Provided Survey Wage 

Methodology for the Temporary NonAgricultural Employment H–2B 

Program 

AGENCY: Employment and Training 

Administration, Department of Labor. 

ACTION: Notice of proposed rulemaking. 

SUMMARY: The Department of Labor 

(Department or DOL) proposes to amend 


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1For ease of reference, sections of the INA are 

referred to by their corresponding section in the 

U.S. Code. 

2 In accordance with sec. 1517 of title XV of the 

Homeland Security Act of 2002 (HSA), Public Law 

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 (2002) (codifying HSA, title XV, sec. 

1517); 6 U.S.C. 542; 8 U.S.C. 1551). 

its regulations for employer-provided 

wage surveys for the H–2B temporary 

labor certification program. The 

regulations were published in the Wage 

Methodology for the Temporary NonAgricultural Employment H–2B Program 

final rule (2015 Wage Rule). This notice 

of proposed rulemaking (NPRM or 

proposed rule) proposes to amend those 

regulations consistent with recent 

Federal litigation by clarifying existing 

requirements for employer-provided 

surveys for the H–2B program, 

proposing new requirements, and 

proposing to eliminate Form ETA–9165, 

Employer-Provided Survey Attestations 

to Accompany H–2B Prevailing Wage 

Determination Request Based on a NonOEWS Survey (Form ETA–9165). 

DATES: Interested persons are invited to 

submit written comments on the 

proposed rule on or before January 17, 

2025. 

ADDRESSES: You may submit comments 

electronically by the following method: 

Federal eRulemaking Portal: https://

www.regulations.gov/. Follow the 

instructions on the website for 

submitting comments. 

Instructions: Include the agency’s 

name and docket number ETA–2024– 

0001 in your comments. All comments 

received will become a matter of public 

record and may be posted without 

change to https://www.regulations.gov/. 

Comments submitted after the deadline 

for submission will not be considered. 

Please do not submit comments 

containing trade secrets, confidential or 

proprietary commercial or financial 

information, personal health 

information, sensitive personally 

identifiable information (for example, 

social security numbers, driver’s license 

or state identification numbers, passport 

numbers, or financial account numbers), 

or other information that you do not 

want to be made available to the public. 

The agency reserves the right to redact 

or refrain from posting such information 

and libelous or otherwise inappropriate 

comments, including those that contain 

obscene, indecent, or profane language; 

that contain threats or defamatory 

statements; or that contain hate speech 

directed at race, color, sex, sexual 

orientation, national origin, ethnicity, 

age, religion, or disability. Please note 

that depending on how information is 

submitted through regulations.gov, the 

agency may not be able to redact the 

information and instead reserves the 

right to refrain from posting the 

information or comment in such 

situations. 

FOR FURTHER INFORMATION CONTACT: 

Michelle L. Paczynski, Administrator, 

Office of Policy Development and 

Research, Employment and Training 

Administration, U.S. Department of 

Labor, 200 Constitution Avenue NW, 

Room N–5641, Washington, DC 20210, 

telephone: (202) 693–3700 (this is not a 

toll-free number). For persons with a 

hearing or speech disability who need 

assistance to use the telephone system, 

please dial 711 to access 

telecommunications relay services. 

SUPPLEMENTARY INFORMATION: 

Preamble Table of Contents 

I. Acronyms and Abbreviations 

II. Background 

A. The Statutory and Regulatory 

Framework 

B. The 2008 Rule, the Related Litigation, 

and the Attempted 2011 Wage Rule 

C. The 2013 Interim Final Rule 

D. Vacatur of the 2013 Interim Final Rule 

E. The 2015 Wage Rule, the 2016 

Appropriations Rider, and DOL’s 

Guidance Regarding the Rider’s Effect on 

the Rule 

F. Invalidation of the 2015 Wage Rule 

G. The Department’s Authority To 

Promulgate This Rule 

III. Summary of Proposed Revisions to 20 

CFR part 655; Subpart A; 20 CFR 655.10 

A. Discussion of Proposed Technical 

Changes to 20 CFR 655.10 

B. Discussion of Proposed Revisions to 20 

CFR 655.10(f)(1) 

C. Discussion of Proposed Revisions to 20 

CFR 655.10(f)(2) 

D. Discussion of 20 CFR 655.10(f)(3) 

E. Discussion of Proposed Revisions to 20 

CFR 655.10(f)(4) 

F. Discussion of Proposed Regulatory 

Revisions to 20 CFR 655.10(f)(5) 

IV. Administrative Information 

A. Executive Order 12866: Regulatory 

Planning and Review; Executive Order 

14094: Modernizing Regulatory Review; 

and Executive Order 13563: Improving 

Regulation and Regulatory Review 

B. Regulatory Flexibility Analysis and 

Small Business Regulatory Enforcement 

Fairness Act and Executive Order 13272: 

Proper Consideration of Small Entities in 

Agency Rulemaking 

C. Paperwork Reduction Act 

D. Unfunded Mandates Reform Act of 1995 

E. Executive Order 13132 (Federalism) 

F. Executive Order 13175 (Consultation 

and Coordination With Indian Tribal 

Governments) 

I. Acronyms and Abbreviations 

APA Administrative Procedure Act 

BLS Bureau of Labor Statistics 

CATA Comite ́ de Apoyo a los Trabajadores 

Agrı ́colas 

CBA collective bargaining agreement 

DBA Davis-Bacon Act 

DHS U.S. Department of Homeland 

Security 

DOL U.S. Department of Labor 

FAQ Frequently Asked Questions 

FY fiscal year 

GAL General Administration Letter 

HR human resources 

HSA Homeland Security Act of 2002 

IFR interim final rule 

INA Immigration and Nationality Act 

MOU memorandum of understanding 

NPRM notice of proposed rulemaking 

NPWC National Prevailing Wage Center 

OES Occupational Employment Statistics 

OEWS Occupational Employment and 

Wage Statistics 

OFLC Office of Foreign Labor Certification 

OIRA Office of Information and Regulatory 

Affairs 

OMB Office of Management and Budget 

PRA Paperwork Reduction Act 

PWD prevailing wage determination 

SCA McNamara-O’Hara Service Contract 

Act 

SESA State employment service agencies 

SOC Standard Occupational Classification 

UMRA Unfunded Mandates Reform Act of 

1995 

II. Background 

A. The Statutory and Regulatory 

Framework 

The Immigration and Nationality Act 

(INA), as amended, establishes the H–2B 

nonimmigrant classification for a nonagricultural 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).1 Employers must 

petition the Department of Homeland 

Security (DHS) for classification of a 

prospective temporary worker as an H– 

2B nonimmigrant. 8 U.S.C. 1184(c)(1). 

DHS must approve this petition before 

the beneficiary can be considered 

eligible for an H–2B visa or H–2B status. 

Id. In addition, the INA requires that 

‘‘[t]he question of importing any [foreign 

worker] as [an H–2B] nonimmigrant 

. . . in any specific case or specific 

cases shall be determined by [DHS] 2

after consultation with appropriate 

agencies of the Government.’’ Id. 

Pursuant to this statutory mandate to 

consult with ‘‘appropriate agencies of 

the Government’’ to determine 

eligibility for H–2B 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 


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3See, 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 that 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.’’). 

4Prior to March 31, 2021, this survey—conducted 

by the Department’s Bureau of Labor Statistics 

(BLS)—was known as the Occupational 

Employment Statistics (OES) survey. For the sake 

of consistency, however, the Department uses the 

term OEWS throughout. 

5Because the OEWS survey does not capture 

information on the skills or responsibilities of the 

workers whose wages are being reported, the fourtiered wage structure, adapted from the statutorily 

required four tiers applicable to the H–1B visa 

program under 8 U.S.C. 1182(p), was derived by 

mathematical formula to reflect ‘‘entry level,’’ 

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

workers. See id. at 78068; Prevailing Wage 

Determination Policy Guidance, Nonagricultural 

Immigration Programs, Revised (revised Nov. 2009) 

(2009 Prevailing Wage Guidance), available at 

https://www.dol.gov/sites/dolgov/files/ETA/oflc/ 

pdfs/NPWHC_Guidance_Revised_11_2009.pdf. 

6These 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). 

DOL to advise whether U.S. workers 

capable of performing the temporary 

services or labor are available.3

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). 

The temporary labor certification serves 

as DOL’s 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). 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). 

Section 655.10, in turn, requires that 

any prospective H–2B employer first 

obtain from DOL a prevailing wage 

determination (PWD) before filing its 

application with DOL for temporary 

labor certification. 20 CFR 655.10(a). 

B. The 2008 Rule, the Related Litigation, 

and the Attempted 2011 Wage Rule 

In 2008, DOL issued regulations 

related to its role in the H–2B temporary 

worker program, including a 

methodology for determining the 

minimum wage that a prospective H–2B 

employer must offer, advertise in 

recruitment, and 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 (2008 Rule), 73 FR 78020 (Dec. 

19, 2008). The 2008 Rule provided, inter 

alia, 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 and Wage Statistics 

(OEWS) 4 survey 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) or the McNamara-O’Hara Service 

Contract Act (SCA), if one was available 

for the occupation in the area of 

intended employment. Id. at 78056. The 

2008 Rule and the agency guidance 

implementing it required that when 

PWDs were based on the OEWS survey, 

the wage had to be structured to contain 

four tiers to reflect skill and 

experience.5 Id. at 78056, 78068. While 

DOL subjected most provisions of the 

2008 Rule to the Administrative 

Procedure Act’s (APA) notice-andcomment requirements, because the 

agency had already been implementing 

the four-tier wage structure in the H–2B 

program pursuant to sub-regulatory 

guidance, DOL did not seek public 

comments on the use of the four-tier 

structure when promulgating the 2008 

Rule. See id. at 78031. 

In 2009, a lawsuit was filed under the 

APA challenging several aspects of the 

2008 Rule. See Comite ́ de Apoyo a los 

Trabajadores Agrı ́colas (CATA) v. Solis, 

No. 09–cv–240, 2010 WL 3431761 (E.D. 

Pa. Aug. 30, 2010) (CATA I). Among the 

issues raised in that litigation was the 

use of the four-tier wage structure in the 

H–2B program. In its decision, the 

district court ruled that, substantively, 

DOL had violated the APA by failing to 

adequately explain its reasoning for 

adopting skill and experience levels as 

part of the H–2B PWD process. Id. at 

*19. The court also found that the fourtier wage structure was a legislative rule 

subject to the APA’s notice-andcomment provision, and that DOL had 

failed to subject it to notice and 

comment. Id. 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]’’ within 120 

days. Id. at *27. 

Consequently, after issuing an NPRM 

on October 5, 2010, DOL published a 

final rule on January 19, 2011. See Wage 

Methodology for the Temporary NonAgricultural Employment H–2B 

Program, 75 FR 61578 (Oct. 5, 2010); 

Wage Methodology for the Temporary 

Non-Agricultural Employment H–2B 

Program (2011 Wage Rule), 76 FR 3452, 

3465–3467 (Jan. 19, 2011). The 2011 

Wage Rule eliminated the four-tier 

structure. Id. at 3458–3461. The 2011 

Wage Rule set the prevailing wage as the 

highest of the OEWS arithmetic mean 

for each occupational category in the 

area of intended employment; the 

applicable SCA or DBA wage rate; or the 

CBA wage. The use of employerprovided surveys was eliminated except 

when the job opportunity: (1) was in a 

geographic location not included in the 

Bureau of Labor Statistics’ (BLS) data 

collection for the OEWS (e.g., the 

Commonwealth of the Northern Mariana 

Islands); or (2) was not ‘‘accurately 

represented’’ within the OEWS job 

classification used in those surveys. Id. 

at 3466–3467. In deciding to so limit the 

submission and use of employerprovided surveys, the Department stated 

that the OEWS wage survey was ‘‘the 

most consistent, efficient, and accurate 

means of determining the prevailing 

wage rate for the H–2B program.’’ Id. at 

3465. 

The effective date of the 2011 Wage 

Rule was originally set for January 1, 

2012—a date the CATA plaintiffs 

challenged, seeking an earlier one—but 

Congress ultimately short-circuited the 

dispute by an enacting an 

appropriations rider prohibiting the 

Department from implementing the 

2011 Wage Rule. Public Law 112–55, 

125 Stat. 552, Div. B, title V, sec. 546 

(Nov. 18, 2011). DOL therefore extended 

the effective date to October 1, 2012. 76 

FR 82115 (Dec. 30, 2011). Subsequent 

appropriations contained the same 

restriction prohibiting DOL’s use of 

appropriated funds to implement, 

administer, or enforce the 2011 Wage 

Rule, necessitating additional 

rulemaking to further delay the effective 

date of the 2011 Wage Rule.6 77 FR 

60040 (Oct. 2, 2012) (extending the 

effective date to March 27, 2013); 78 FR 


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7 DOL and DHS published the 2013 IFR jointly in 

light of a then-recent court decision indicating DOL 

lacked authority to promulgate H–2B rules. See 

Bayou Lawn & Landscape Servs. v. DOL, 713 F.3d 

1080, 1085 (11th Cir. 2013) (affirming preliminary 

injunction based in part on plaintiffs’ likelihood of 

succeeding on their claim that DOL lacked 

authority to promulgate H–2B rules). Subsequent 

courts, reviewing the matter on the merits, reached 

the opposite conclusion. See Outdoor Amusement 

Bus. Ass’n v. DHS, 983 F.3d 671, 685 (4th Cir. 2020) 

(DOL has authority to promulgate H–2B rules); La. 

Forestry Ass’n v. DOL, 745 F.3d 653, 675 (3d Cir. 

2014) (same). 

8Specifically, the 2013 IFR invited comment on 

the following questions with respect to employerprovided surveys: ‘‘Are there methodological 

standards that can or should be included in the 

regulation that would ensure consistency, validity 

and reliability of employer-provided surveys? Are 

there industries in which employers historically 

and routinely rely on employer-submitted surveys 

that should be permitted to do so because of the 

well-developed, historical, industry-wide practice, 

or for other reasons? Are there state-developed wage 

surveys, such as state agricultural surveys, or 

surveys from other agencies, such as maritime 

agencies, that could provide data that would be 

useful in setting prevailing wages? Should 

employer surveys that include data based on wages 

paid to H–2B or other nonimmigrant workers be 

permitted in establishing a prevailing wage that 

does not adversely affect U.S. workers? If so, under 

what circumstances?’’ 78 FR 24055 (Apr. 24, 2013). 

9A substantial number of comments on the 2013 

IFR repeated, to a great extent, the same arguments 

that had been raised in connection with the 2011 

rulemaking. See 76 FR 3458–3463 (Jan. 19, 2011). 

10The 2009 Prevailing Wage Guidance governed 

the methodology for employer-provided surveys 

across DOL-administered wage programs. See 2009 

Prevailing Wage Guidance, available at https://

www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/ 

NPWHC_Guidance_Revised_11_2009.pdf. 

19098 (Mar. 29, 2013) (extending the 

effective date to October 1, 2013). 

Given Congress’s prohibition against 

implementation of the 2011 Wage Rule, 

the Department continued to operate the 

H–2B program under the 2008 Rule, 

which CATA I had invalidated but not 

vacated. The CATA plaintiffs, however, 

sued again and on March 31, 2013, 

obtained a permanent injunction against 

application and vacatur of the four-tier 

OEWS structure in the 2008 Rule. CATA 

v. Solis, 933 F. Supp. 2d 700, 716 (E.D. 

Pa. 2013) (CATA II). In particular, the 

court vacated and remanded 20 CFR 

655.10(b)(2), giving DOL 30 days to 

come into compliance with its ruling 

finding invalid the four-tier OEWS skill 

level and wage structure. Id. In the 

interim, DOL was unable to issue the 

vast majority of H–2B PWDs, which 

were based on the OEWS survey. 

C. The 2013 Interim Final Rule 

In compliance with the CATA II 

court’s ruling, DOL published an 

interim final rule (IFR). Wage 

Methodology for the Temporary NonAgricultural Employment H–2B 

Program, Part 2, 78 FR 24047 (Apr. 24, 

2013) (2013 IFR).7 The 2013 IFR became 

effective on the date of publication, with 

the agencies asserting that they had 

‘‘good cause’’ for an immediate effective 

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

Given the vacatur of the 2008 Rule, the 

agencies would have been forced to 

cease processing employers’ requests for 

PWDs and temporary labor certifications 

without an immediate effective date and 

thus unable to continue to provide the 

advice that DHS had determined to be 

necessary under 8 U.S.C. 1184(c)(1)—as 

implemented in the DHS regulation at 8 

CFR 214.2(h)(6)—for DHS to fulfill its 

statutory responsibility to adjudicate H– 

2B petitions. Id. at 24050. 

The 2013 IFR did not revise or amend 

20 CFR 655.10(f) of the 2008 Rule, 

leaving intact the permitted use of 

employer-provided surveys. Id. at 

24054–24055. Noting that ‘‘DOL still has 

the concerns expressed in the 2011 rule 

about the consistency, reliability and 

validity’’ of employer-provided surveys, 

the 2013 IFR stated that DOL and DHS 

invited comment on ‘‘whether to permit 

the continued use of employersubmitted surveys.’’ Id. at 24055. The 

2013 IFR invited comment on the 

following: all aspects of the prevailing 

wage methodology of 20 CFR 655.10, 

including, among other things, whether 

the OEWS mean was the appropriate 

basis for determining the prevailing 

wage; whether wages based on the DBA 

or the SCA should be used to determine 

the prevailing wage and if so, to what 

extent; comments on the accuracy and 

reliability of private surveys, including 

‘‘state-developed’’ surveys; and whether 

the continued use of employer-provided 

surveys should be permitted and if so, 

how to better ensure their 

methodological soundness. Id.8

The comment period closed on June 

10, 2013, and the agencies received over 

300 comments on all aspects of the H– 

2B wage methodology from interested 

parties.9 Meanwhile, because Congress 

continued to prohibit the use of funds 

to implement the 2011 Wage Rule, DOL 

indefinitely delayed its effective date. 

See Wage Methodology for the 

Temporary Non-Agricultural 

Employment H–2B Program; Delay of 

Effective Date (Indefinite Delay Rule), 

78 FR 53643, 53645 (Aug. 30, 2013). 

Although the appropriations prohibition 

was removed as part of the Department’s 

fiscal year (FY) 2014 appropriation, 

Consolidated Appropriations Act, 2014, 

Public Law 113–76, 128 Stat. 5, DOL has 

not since revisited the Indefinite Delay 

Rule. 

D. Vacatur of the 2013 Interim Final 

Rule 

In 2014, the CATA plaintiffs sued for 

the third time, challenging the 2013 

IFR’s continued allowance of employerprovided surveys to set the prevailing 

wage under 20 CFR 655.10(f). See CATA 

v. Perez, No. 2:14–02657, 2014 WL 

4100708 (E.D. Pa. Jul. 23, 2014). In 

addition, the CATA plaintiffs 

challenged DOL’s ongoing use under the 

2013 IFR of the 2009 Prevailing Wage 

Guidance,10 which continued to permit 

surveys to incorporate skill levels at 

least with respect to employer-provided 

surveys. Id. The district court dismissed 

the case on procedural grounds. On 

December 5, 2014, however, the Court of 

Appeals for the Third Circuit reversed, 

vacating both 20 CFR 655.10(f) and the 

2009 Prevailing Wage Guidance. CATA 

v. Perez, 774 F.3d 173, 191 (3d Cir. 

2014) (CATA III). 

The CATA III court invalidated the 

use of employer-provided surveys in the 

H–2B program on both substantive and 

procedural grounds. First, the court held 

that DOL’s failure to explain the broad 

acceptance of employer-provided 

surveys where an OEWS wage is 

available was procedurally invalid, 

particularly because this decision was a 

policy change from the 2011 Wage 

Rule’s prohibition of most employerprovided surveys as an alternative to the 

OEWS. Id. at 187–88. Next, the court 

held that the employer-provided survey 

provision of the 2013 IFR, § 655.10(f), 

was arbitrary, and therefore 

substantively invalid under the APA, 

given DOL’s findings in the 2011 Wage 

Rule, 76 FR 3465 (Jan. 19, 2011), that 

the OEWS is the ‘‘most consistent, 

efficient, and accurate means of 

determining the prevailing wage rate for 

the H–2B program.’’ CATA III, 774 F.3d 

173 at 189. Further, the court held that 

§ 655.10(f) was substantively invalid 

under the APA because it permitted 

wealthy employers to commission 

surveys that resulted in a lower 

prevailing wage than those 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. Id. at 189–90. 

Finally, the court held that the 2009 

Prevailing Wage Guidance violated the 

APA because it allowed employerprovided surveys containing tiered 

wages based on skill levels. This, the 

court held, conflicted with the CATA II 

order, which invalidated the four-tier 

OEWS structure. Id. at 190–91. 

The CATA III court ultimately 

‘‘direct[ed] that private surveys no 

longer be used in determining the mean 

rate of wage for occupations except 

where an otherwise applicable OE[W]S 

survey does not provide any data for an 


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11This language has been included in each 

subsequent appropriation. See Further Consol. 

Appropriations Act, 2024, Public Law 118–47, Div. 

D, title I, sec. 110, 138 Stat. 460, 646 (2024); Consol. 

Appropriations Act, 2023, Public Law 117–328, 

Div. H, title I, sec. 110, 136 Stat. 4459, 4852 (2023); 

Consol. Appropriations Act, 2022, Public Law 117– 

103, sec. 110, 136 Stat. 49, 439 (2022); Consol. 

Appropriations Act, 2021, Public Law 116–260, sec. 

110, 134 Stat. 1182, 1564–65 (2020); Further 

Consol. Appropriations Act, 2020, Public Law 116– 

94, sec. 110, 133 Stat. 2534, 2554 (2019); Dep’t of 

Defense, Labor, Health and Hum. Serv., and Educ. 

Appropriations Act, 2019, and Continuing 

Appropriations Act, 2019, Public Law 115–245, sec. 

111, 132 Stat. 2981, 3065 (2018); Consol. 

Appropriations Act, 2018, Public Law 115–141, sec. 

112, 132 Stat. 348, 712 (2018); Consol. 

Appropriations Act, 2017, Public Law 115–31, sec. 

112, 131 Stat. 135, 518–19 (2017). 

12See DOL, Emp’t & Training Admin., Effects of 

the 2016 Dep’t of Labor Appropriations Act at 4 

(Dec. 29, 2015), available at https://www.dol.gov/ 

sites/dolgov/files/ETA/oflc/pdfs/H2B_Prevailing_

Wage_FAQs_DOL_Appropriations_Act.pdf. 

occupation in a specific geographical 

location, or where the OE[W]S survey 

does not accurately represent the 

relevant job classification.’’ Id. DOL 

immediately ceased accepting 

employer-provided wage surveys. 80 FR 

at 24151 (Apr. 29, 2015). 

E. The 2015 Wage Rule, the 2016 

Appropriations Rider, and DOL’s 

Guidance Regarding the Rider’s Effect 

on the Rule 

Soon after the CATA III decision, the 

court in Perez v. Perez, No. 14–cv–682 

(N.D. Fla. Mar. 4, 2015), vacated the 

2008 Rule and permanently enjoined 

DOL from applying or enforcing it, thus 

creating a regulatory void. DOL had to 

cease operating the H–2B program 

briefly until it obtained a temporary stay 

of the Perez court’s order until May 15, 

2015. 80 FR at 24151 (Apr. 29, 2015). 

On April 29, 2015, DOL and DHS jointly 

published two rules: the Temporary 

Non-Agricultural Employment of H–2B 

Aliens in the United States IFR, 80 FR 

24042 (Apr. 29, 2015), and the 2015 

Wage Rule, Wage Methodology for the 

Temporary Non-Agricultural 

Employment H–2B Program, 80 FR 

24146 (Apr. 29, 2015). The 2015 Wage 

Rule acknowledged the CATA III court’s 

substantive concerns regarding the 

validity of employer-provided surveys 

in the H–2B program and stated that 

‘‘DOL’s options for accepting such 

surveys under this final rule are now 

necessarily more limited than under the 

2013 IFR.’’ Id. at 24151. Referring to the 

questions presented to 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,’’ the 2015 Wage Rule discussed 

the comments submitted by worker 

advocacy groups, employers and 

employer associations, and associations 

of seafood processing employers, among 

others. Id. at 24166–24169. 

After reviewing the comments 

provided, and recognizing the concerns 

underscored by the CATA III decision, 

the 2015 Wage Rule reiterated DOL’s 

position in the 2011 Wage Rule, stating 

‘‘DOL experience reviewing employerprovided surveys since 2011 has not 

provided any demonstrable evidence 

that the wage information produced 

from nongovernment surveys is any 

more consistent or reliable than DOL 

determined was the case four years 

ago.’’ Id. at 24168. The 2015 Wage Rule 

went on to state that, given DOL’s 

administrative experience regarding 

employer-provided surveys, the 

comments received following the 2013 

IFR, and the court’s decision in CATA 

III, ‘‘the Departments have decided to 

allow the submission of employerprovided surveys to set the prevailing 

wage in H–2B in limited 

circumstances.’’ Id. The first two such 

circumstances tracked those endorsed 

by the court in CATA III, permitting 

‘‘the use of a nongovernmental 

employer-provided survey to set the 

prevailing wage only where the OE[W]S 

survey does not provide any data for an 

occupation in a specific geographical 

location, or where the OE[W]S survey 

does not accurately represent the 

relevant job classification.’’ Id. 

When submitting such a wage survey, 

an employer was required to include 

‘‘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.’’ 20 CFR 

655.10(f)(4). Further, the employer was 

required to attest, via Form ETA–9165, 

that the survey was not conducted by 

the employer or its agents, that the 

surveyor either contacted a randomized 

sample of relevant employers or 

attempted to contact them all, and, 

among other things, that the ‘‘survey 

includes wage data from at least 30 

workers and three employers.’’ Id. at 

§ 655.10(f)(4)(i) through (iii). 

Additionally, the 2015 Wage Rule 

included a ‘‘third, limited category of 

acceptable employer-provided surveys, 

even where the occupation is 

sufficiently represented in the OE[W]S.’’ 

80 FR 24169–24170 (Apr. 29, 2015). In 

reaching this conclusion, the 

Departments quoted the preamble to the 

2011 Wage Rule, which stated ‘‘the 

prevailing wage rate is best determined 

through reliable Government surveys of 

wage rates, rather than employerprovided surveys that employ varying 

methods, statistics, and surveys.’’ Id. at 

24170 (citing 76 FR 3465, Jan. 19, 2011). 

The Departments stated that, consistent 

with their assessment that government 

surveys are reliable, ‘‘surveys conducted 

and issued by a state represent an 

additional category of reliable 

government surveys.’’ Id. at 24170. The 

preamble to the 2015 Wage Rule further 

reasoned that as the State-conducted 

surveys were capable of meeting the 

methodological standards included in 

the rule, and if issued without regard to 

the interest of any employer in the 

outcome of the wage reported from the 

survey, such surveys would be 

‘‘generally reliable and an adequate 

substitute for the OE[W]S.’’ Id. 

Shortly after promulgation of the 2015 

Wage Rule, however, Congress included 

in the Department’s FY 2016 

appropriation a provision that mandated 

broader use of employer-provided 

surveys: 

The determination of prevailing wage for 

the purposes of the H–2B program shall be 

the greater of—(1) the actual wage level paid 

by the employer to other employees with 

similar experience and qualifications for 

such position in the same location; or (2) the 

prevailing wage level for the occupational 

classification of the position in the 

geographic area in which the H–2B 

nonimmigrant will be employed, based on 

the best information available at the time of 

filing the petition. In the determination of 

prevailing wage for the purposes of the H– 

2B program, the Secretary shall accept 

private wage surveys even in instances where 

Occupational Employment Statistics survey 

data are available unless the Secretary 

determines that the methodology and data in 

the provided survey are not statistically 

supported. 

Consol. Appropriations Act, 2016, 

Public Law 114–113, sec. 112, 129 Stat. 

2242, 2599 (Dec. 18, 2015). Every 

subsequent Appropriations Act has 

included the same provision.11 Shortly 

after the first of the appropriations 

riders, DOL published a Frequently 

Asked Questions (FAQ) on its website 

stating that it would use the criteria in 

the 2015 Wage Rule to determine 

whether an employer-provided survey 

was ‘‘statistically supported’’ within the 

meaning of the appropriations rider.12

F. Invalidation of the 2015 Wage Rule 

The United States District Court for 

the District of Columbia issued a 

decision on December 23, 2022, holding 

the 2015 Wage Rule—specifically 20 

CFR 655.10(f)(2) and (f)(4)—to be 

procedurally invalid for failure to 

comply with the notice-and-comment 

requirement of the APA, and further 


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13Although other courts have reached a different 

conclusion at the preliminary injunction stage of 

litigation challenging the Department’s authority to 

issue regulations, Bayou Lawn & Landscape Servs., 

713 F.3d 1080, 1085 (11th Cir. 2013) (affirming 

preliminary injunction, holding the plaintiffs were 

likely to succeed on claim that DOL lacked 

authority to promulgate H–2B rules), or under a 

separate theory of rulemaking authority, G.H. 

Daniels v. Perez, 626 F. Appx. 205 (10th Cir. 2015) 

(DHS’s 2008 H–2B rule improperly sub-delegated 

certification authority to DOL), the Department 

disagrees with the conclusions reached in those 

cases—which were either not merits decisions or 

non-precedential—regarding its rulemaking 

authority for the reasons explained in this NPRM. 

14As discussed further in Section III.B, below, the 

Department recognizes that the language contained 

in every appropriations act since 2016 supersedes 

these limitations and requires acceptance of any 

employer-provided wage survey unless it 

determines that the methodology and data in the 

survey are not ‘‘statistically supported.’’ See n.11, 

above. The Department proposes to retain the same 

limitations as in the current rule in the event that 

the language is eliminated from or modified in 

future appropriations acts. When Congress annually 

reenacts a provision in appropriations acts, 

‘‘common sense suggests—and courts are free to 

presume—that Congress did not consider the 

language as creating permanent law.’’ Atlantic Fish 

Spotters Ass’n v. Evans, 321 F.3d 220, 227 (1st Cir. 

2003) (citing U.S. v. Vulte, 233 U.S. 509, 514 

(1914)). 

holding that DOL’s application of the 

2015 Wage Rule—specifically paragraph 

(f)(3)—to PWDs accepting a 2021 

employer-provided wage survey was 

unlawful. Williams, et al. v. Walsh, et 

al., 648 F.Supp.3d 70, 75 (D.D.C. 2022). 

Regarding the first holding, the court 

reasoned that although the 2015 Wage 

Rule purported to finalize the 2013 IFR, 

the CATA III decision had vacated the 

2013 IFR. Id. at 91. As a result of the 

CATA III vacatur, the Williams court 

concluded that the agencies were 

required to either engage in a new 

notice-and-comment procedure or 

invoke the APA’s good-cause exception 

to promulgate the 2015 Wage Rule as an 

IFR. Id. Because the agencies did 

neither, the court ruled that the 2015 

Wage Rule was procedurally deficient, 

specifically invalidating paragraphs 

(f)(2) and (f)(4). Id. Having reached this 

conclusion with respect to the 2015 

Wage Rule’s procedural defects, the 

Court did not reach Plaintiffs’ 

substantive facial challenges to the 2015 

Wage Rule. 

Regarding the Plaintiffs’ as-applied 

challenge to the rule, the Court held that 

DOL erred in accepting the 2021 wage 

survey that had been submitted by some 

twenty employers because the survey 

had been expanded beyond the area of 

intended employment for stated reasons 

that did not meet the requirements of 

paragraph (f)(3). Id. at 95–96. 

The Court remanded the case to the 

agencies for further consideration 

consistent with its opinion. Id. at 97–99. 

This rulemaking is being undertaken 

consistent with the court’s order. 

G. The Department’s Authority To 

Promulgate This Rule 

As discussed above, the INA obligates 

DHS to consult with ‘‘appropriate 

agencies of the Government’’ in 

considering an employer’s petition for 

visas for nonimmigrant workers. 8 

U.S.C. 1184(c)(1). DHS regulations 

designate the Secretary of Labor as an 

appropriate consultant regarding the H– 

2B program, specify that the Secretary 

shall establish procedures for 

administering the labor certification 

program, and require an employer’s 

petition to employ H–2B workers to be 

accompanied by an approved temporary 

labor certification from the Secretary. 8 

CFR 214.2(h)(6)(iii)(D), (iv); see also 20 

CFR 655.1. The Department’s authority 

to promulgate regulations to structure 

and administer the H–2B temporary 

labor certification process, including the 

determination of the prevailing wage, 

has been judicially upheld. Outdoor 

Amusement Bus. Ass’n v. DHS, 983 F.3d 

671, 684–89 (4th Cir. 2020) (DOL 

possesses independent H–2B 

rulemaking authority); La. Forestry 

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

2014) (same).13

In addition, the language in the 

appropriations riders discussed in 

Section II.E, above, specifically 

authorizes the Secretary of Labor to 

determine whether the ‘‘methodology 

and data’’ used in an employer-provided 

wage survey is ‘‘statistically supported.’’ 

See, e.g., Further Consol. 

Appropriations Act, 2024, Public Law 

118–47, Div. D, title I, sec. 110, 138 Stat. 

460, 646 (2024); Consol. Appropriations 

Act, 2023, Public Law 117–328, Div. H, 

title I, sec. 110, 136 Stat. 4459, 4852 

(2023). The methodological and data 

criteria proposed here implement that 

statutory requirement. Accordingly, as 

part of its consultative role and based on 

the language in recent appropriations 

riders, the Department possesses clear 

authority to promulgate the proposed 

rule. 

III. Summary of Proposed Revisions to 

20 CFR Part 655; Subpart A; 20 CFR 

655.10 

In compliance with the Williams 

ruling, the Department hereby provides 

notice and an opportunity to comment 

on the proposed employer-provided 

wage survey provisions of 20 CFR 

655.10(f). The Department proposes to 

allow employers to submit wage surveys 

in the same limited circumstances as the 

2015 Wage Rule, the current rule, does. 

Specifically, if the job opportunity is not 

covered by a CBA or a professional 

sports league’s rules or regulations, an 

employer would be permitted to submit 

a survey only if: (1) the survey was 

independently conducted and issued by 

a State, including any State agency, 

State college, or State university; (2) the 

survey is submitted for a geographic 

area where the BLS does not collect 

OEWS survey data, or in a geographic 

area where the OEWS survey provides 

an arithmetic mean only at a national 

level for workers employed in the 

Standard Occupational Classification 

(SOC); or (3) the job opportunity is 

within an occupational classification of 

the SOC system designated as an ‘‘All 

Other’’ classification.14 The proposed 

rule, however, would eliminate the 

option that such a survey could report 

the median wages of workers 

performing the same or substantially 

similar job duties in the area of intended 

employment. Rather, the proposed rule 

would only allow the submission of a 

survey that includes the arithmetic 

mean of the wages of those workers. 

The proposed rule, like the current 

rule, would require an employerprovided survey to contain specific 

information about the survey 

methodology, such as sample size and 

source, sample selection procedures, 

and survey job descriptions, to allow the 

National Prevailing Wage Center 

(NPWC) to determine the adequacy of 

the survey data and validity of the 

methodology used to conduct the 

survey. The proposed rule, however, 

would eliminate the standard survey 

attestation form, Form ETA–9165, 

Employer-Provided Survey Attestations 

to Accompany H–2B Prevailing Wage 

Determination Request Based on a NonOES Survey (Form ETA–9165), which 

H–2B employers must complete and 

submit under the current rule when 

they request a survey-based prevailing 

wage. Instead, the proposed rule would 

require the employer to submit the 

survey to the NPWC for evaluation at 

the same time the employer submits its 

Form ETA–9141 requesting a PWD from 

the NPWC. 

Additionally, the proposed rule 

would include new requirements to 

follow-up at least three times with nonrespondents and to keep the survey 

open for accepting responses for at least 

14 calendar days after the issuance of 

the third follow-up. The follow-up 

requirement would reduce sampling 

bias, and the additional 14-calendar day 

period would maximize the amount of 

wage data collected. Together, these two 

new requirements would result in more 

accurate surveys. The proposed rule 

would, like the current rule, provide 

that if the minimum sample size of 3 

employers and 30 workers is not met, 


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15See n.11, above. 

16See 80 FR 24146, 24170 (Apr. 29, 2015). 

17 Id. 

18 Id. 

19 Id. 

20 80 FR 24146, 24170 (Apr. 29, 2015). 

21 774 F.3d at 191 (private surveys may be used 

‘‘where an otherwise applicable OE[W]S survey 

does not provide any data for an occupation in a 

specific geographic location’’). 

22See 2018 SOC Manual, available at https://

www.bls.gov/soc/2018/soc_2018_manual.pdf, at 1. 

23 Id. 

24 Id. at 23. 

25 Id. 

the geographic area of the survey may be 

expanded beyond the area of intended 

employment to other contiguous 

geographic areas in order to meet the 

minimum sample size requirement. 

The Department seeks public 

comment on all aspects of this proposed 

rule discussed in Sections III.A through 

III.F below, especially the proposed 

revisions to the current § 655.10(f). 

A. Discussion of Proposed Technical 

Changes to 20 CFR 655.10 

Consistent with the 2015 Wage Rule, 

the Department proposes the following 

technical changes. First, the proposed 

rule would retain § 655.10(a) with a 

technical change to spell out the phrase 

‘‘prevailing wage determination’’ and 

placing ‘‘PWD’’ in parentheses. 

Second, this proposed rule would 

retain § 655.10(a) and (b), with three 

technical changes in § 655.10(b) by 

inserting the word ‘‘Wage’’ between the 

words ‘‘and Statistics’’ and inserting a 

‘‘W’’ into ‘‘OES’’ in the parenthetical 

‘‘(OES).’’ Also, the proposed rule would 

replace the term ‘‘OFLC’’ with ‘‘the 

NPWC’’ in § 655.10(b)(2). These 

technical changes are for consistency 

with other sections of this proposed 

rule. 

Third, this proposed rule would 

retain § 655.10(e) with technical 

changes to: (1) replace the word 

‘‘provide’’ with the word ‘‘determine’’; 

(2) change the placement of ‘‘Form’’ in 

the parenthetical ‘‘(ETA Form-9141)’’ to 

precede ‘‘ETA’’; and (3) replace ‘‘its’’ 

with the phrase ‘‘the determination and 

the NPWC’s’’ for clarity and to be 

consistent with other sections of this 

proposed rule. 

B. Discussion of Proposed Revisions to 

20 CFR 655.10(f)(1) 

The Department proposes to allow 

employers to submit wage surveys in 

the same three circumstances as the 

current rule does. The first two 

circumstances would remain 

unchanged, and the third would be 

revised as discussed in Sections III.B.1 

through III.B.3, below. The Department, 

however, does not intend to apply or 

enforce these limitations on wage 

surveys as long as the language 

contained in the appropriations acts 

discussed above remains in effect. That 

language requires the Secretary to 

‘‘accept private wage surveys even in 

instances where Occupational 

Employment Statistics survey data are 

available unless the Secretary 

determines that the methodology and 

data in the provided survey are not 

statistically supported.’’ 15 This 

language supersedes the current 

§ 655.10(f)(1) and would supersede the 

proposed § 655.10(f)(1) as long as that 

language remains in effect. The 

Department would apply and enforce 

the proposed § 655.10(f)(1) only if and 

when Congress eliminates that language. 

1. State Conducted Survey 

Consistent with current 

§ 655.10(f)(1)(i), this proposal would 

permit employers to submit prevailing 

wage surveys that are independently 

conducted and issued by a State, 

including any State agency, State 

college, or State university. As stated in 

the preamble to the 2015 Wage Rule, the 

Department continues to believe that 

surveys that are independently 

conducted and issued by a State are as 

reliable as ‘‘Government’’ surveys.16

Since a ‘‘state must independently 

conduct and issue the survey, [this 

requirement] 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.’’ 17 In 

addition, a State would have to satisfy 

the proposed rule’s methodological and 

data requirements to be used to 

establish a PWD.18 The Department 

considers State agencies to generally be 

neutral third parties that are free from 

bias and have no self-interest or 

motivation with respect to the result of 

the survey. Based on its ‘‘substantial 

experience with wage surveys 

conducted by the states,’’ the 

Department continues to think that 

surveys conducted by a State agency are 

appropriate as a wage source for the H– 

2B program provided they meet the 

methodological standards described 

below.19

Where a State conducts a survey that 

meets the methodological and data 

requirements in this proposed rule, an 

employer may attach the Stateconducted wage survey to a prevailing 

wage request for consideration as a wage 

source for its job opportunity. While 

there may be concerns about undue 

influence over the development and 

administration of a survey, the 

Department proposes to allow the use of 

surveys conducted by State agencies, 

such as State agriculture or maritime 

agencies, or State colleges and 

universities. These entities 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.20

2. OEWS Data Limitation in Certain 

Geographic Areas 

Consistent with current 

§ 655.10(f)(1)(ii), the Department 

proposes that employers may submit 

surveys where the OEWS survey does 

not collect data in a geographic area, or 

where the OEWS reports a wage for the 

SOC based only on national data. For 

geographic areas where the OEWS does 

not collect data or does not collect 

enough data to report a wage (e.g., 

because the sample size is too small), 

wage surveys could provide the 

Department with access to data it 

simply would not otherwise have. For 

geographic areas where only an OEWS 

national wage is available, a wage 

survey could provide data for the 

geographic area in which the job 

opportunity exists. Thus, this proposed 

rule reflects the Department’s view that 

employers should be permitted to 

submit wage surveys where the 

Department does not have readily 

available or appropriate OEWS data to 

issue a prevailing wage for the 

occupation in the area of intended 

employment where the job opportunity 

will be performed. Acceptance of 

private wage surveys in these 

circumstances was expressly endorsed 

by the court in CATA III.21

3. OEWS Data Limitation in Certain 

SOC Codes 

According to the BLS, the SOC system 

is used ‘‘to classify workers and jobs 

into occupational categories for the 

purpose of collecting, calculating, 

analyzing, or disseminating data.’’ 22

Occupations that have similar job 

duties, and in some cases, similar skills, 

education, and/or training, are classified 

in a distinct detailed SOC code.23 Under 

the SOC system, occupations are 

assigned an SOC code based on the 

worker’s job duties, not the worker’s job 

title(s).24 When workers do not perform 

job duties described in any distinct 

detailed occupation, the SOC system 

classifies the occupation as one 

contained within an ‘‘All Other’’ SOC 

code.25 For example, according to the 

BLS, an ‘‘All Other’’ SOC code is 49– 

9099, Installation, Maintenance, and 


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26 Id. at 181. Please note this example is based on 

the 2018 SOC codes, which are subject to future 

updates. 

27 80 FR 24146, 24169 (Apr. 29, 2015). 

28See generally 2018 SOC Manual, available at 

https://www.bls.gov/soc/2018/soc_2018_

manual.pdf. 

29 774 F.3d at 191 (private surveys may be used 

‘‘where the OE[W]S survey does not accurately 

represent the relevant job classification’’). 

30See 20 CFR 656.40(d) (‘‘similarly employed’’ 

means ‘‘having substantially comparable jobs in the 

occupational category in the area of intended 

employment’’). 31 20 CFR 655.10(f)(2). 

32 80 FR 24146, 24159 (Apr. 29, 2015). 

33 Id. 

34See 8 U.S.C. 1182(a)(5)(A)(i), (p). 

35 Id. at 24172. 

36 Id. 

37 Id. 

Repair Workers, All Other. The BLS 

provides these examples of occupational 

titles that would fall under this SOC 

code: Bowling Alley Mechanic, Fabric 

Awning Repairer, Fire Extinguisher 

Installer, Gasoline Pump Installer, 

Gunsmith, Parachute Repairer, Sail 

Repairer.26

Consistent with the 2015 Wage Rule, 

this proposed rule would continue to 

permit employers to submit surveys 

where the job opportunity is within an 

‘‘All Other’’ SOC code. This situation, 

similar to the one described in the 

preceding section, is one in which a 

wage survey could provide the 

Department access to information that it 

either simply does not have or is more 

sufficiently tailored to the specific 

occupation in the employer’s job 

opportunity. To meet this requirement, 

which is currently in 

§ 655.10(f)(1)(iii)(B), an employer’s job 

opportunity, as entered on the 

employer’s prevailing wage application, 

must entail job duties requiring 

‘‘knowledge, skills, abilities, and work 

tasks that are significantly different than 

those in any SOC classification other 

than [an] ‘all other’ category.’’ 27

The Department proposes to delete 

the current § 655.10(f)(1)(iii)(A) and 

redesignate current § 655.10(f)(1)(iii)(B) 

as § 655.10(f)(1)(iii). Under the current 

§ 655.10(f)(1)(iii)(A), the Department 

accepts an employer-provided survey 

when the employer’s job opportunity is 

not included in an occupational 

classification of the SOC system; and 

under the current § 655.10(f)(1)(iii)(B), 

the Department accepts an employerprovided survey when the job 

opportunity is within an ‘‘All Other’’ 

SOC code. The Department proposes to 

delete subordinate paragraph (A) 

because, in the Department’s 

experience, a more specific SOC code is 

invariably applicable. In assigning an 

SOC code, the Department may consider 

the employer’s prior filing history.28

Acceptance of private wage surveys 

when the job opportunity falls within an 

‘‘All Other’’ SOC code is consistent with 

the court’s decision in CATA III.29

C. Discussion of Proposed Revisions to 

20 CFR 655.10(f)(2) 

The proposed rule would require that 

employer-provided wage surveys 

provide the arithmetic mean of the 

wages of all workers performing the 

same or substantially similar job duties. 

This proposed rule uses the phrase 

‘‘substantially similar,’’ which is 

derived from the Department’s 

permanent labor certification regulation 

at 20 CFR 656.40(d).30 For purposes of 

this proposed rule, ‘‘workers performing 

the same or substantially similar job 

duties’’ refers to workers that are 

similarly employed in the area of 

intended employment. The proposed 

rule would eliminate the exception in 

the current rule 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.’’ 31

Under this proposed rule, if an 

employer submits a survey that provides 

only the median wage, the NPWC would 

issue an OEWS wage for such a PWD 

request. 

The Department proposes this change 

to be consistent with the methodology 

applied when the OEWS survey is the 

wage source used to determine the 

prevailing wage rate. As stated in the 

preamble to the 2015 Wage Rule, ‘‘[t]he 

mean is the average of all wages 

surveyed in an occupation in the 

geographic area, and in the . . . 

[occupations in the H–2B program], the 

mean represents the average wage paid 

to [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.’’ 32 The 

preamble went on to note that ‘‘the 

Department has 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 OE[W]S 

mean provides regulatory continuity. As 

a result, when the prevailing wage is 

based on the OE[W]S survey, the 

Department will set it at the mean 

because it is the most appropriate wage 

to use in order to avoid immigration 

induced labor market distortions 

inconsistent with the requirements of 

INA.’’ 33

The Department’s experience since 

the introduction of the 2015 Wage Rule 

is that H–2B employers have generally 

submitted surveys with the arithmetic 

mean of the wages of all workers 

performing the same or substantially 

similarly job duties in the area of 

intended employment for establishing 

an H–2B survey-based prevailing wage. 

As a result, the Department does not 

believe that elimination of the option to 

provide a survey using a median wage 

will have a significant practical effect 

because the NPWC rarely receives 

surveys that only include a median 

wage. Moreover, the Department 

continues to think that setting the wage 

below the mean would have a 

depressive effect on wages, and 

therefore this proposed change is 

consistent with the Department’s 

obligation to ensure that U.S. workers’ 

wages are not adversely affected when 

setting a prevailing wage for workers 

employed in the H–2B program.34

Under this proposed paragraph, the 

Department would continue to require 

that surveys provide the arithmetic 

mean of the wages of all workers 

similarly employed without regard to 

the immigration status of the workers 

surveyed. Doing so remains consistent 

with the Department’s historical 

practice in the H–2B program 35 and 

would continue to promote consistency 

with the OEWS survey, which includes 

wage data from all workers without 

regard to their immigration status.36

Further, commercial wage surveys 

generally do not exclude workers from 

the survey based on their immigration 

status, and, where the OEWS does not 

provide adequate information for the 

occupation or geographic location, the 

Department is concerned that requiring 

the exclusion of nonimmigrant workers 

would effectively bar employers from 

using such surveys—thus potentially 

leaving the Department without a 

reliable basis on which to set a 

prevailing wage. Therefore, as stated in 

the 2015 Wage Rule and continued in 

this proposed rule, the Department 

‘‘will not accept wage surveys that 

exclude the wages of U.S. workers or 

exclude the wages of nonimmigrant 

workers.’’ 37

D. Discussion of 20 CFR 655.10(f)(3) 

Consistent with the 2015 Wage Rule, 

the Department would continue to 

allow, under proposed § 655.10(f)(3), 

employer-provided surveys to cover a 

geographic area beyond the area of 

intended employment only if: (1) the 

expansion is limited to geographic areas 

that are contiguous to the area of 


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38See id. 

39See General Administration Letter (GAL) 4–95, 

Interim Prevailing Wage Policy for Nonagricultural 

Immigration Programs (May 18, 1995) at p. 4, 

available at https://www.dol.gov/sites/dolgov/files/ 

ETA/advisories/GAL/1995/GAL4-95_attach.pdf. See 

infra n.42. 

40 Id. 

41See GAL 2–98, Prevailing Wage Policy for 

Nonagricultural Immigration Programs (Oct. 31, 

1997) at p. 8, available at https://oui.doleta.gov/ 

dmstree/gal/gal98/gal_0298a.pdf. 

42 80 FR 24146, 24174 (Apr. 29, 2015). 

43See OFLC Frequently Asked Questions and 

Answers, #32 (Sep. 1, 2016), available at https://

foreignlaborcert.doleta.gov/faqsanswers.cfm 

(Question: ‘‘The surveyor has not been able to elicit 

a response to the survey in the occupation and area 

of intended employment that meets the minimum 

sample size requirements (i.e., at least 3 employers 

and 30 workers) of the 2015 H–2B Wage Final Rule. 

May the surveyor expand the geographic area 

surveyed?’’) and (Answer: ‘‘Yes, under certain 

limited conditions, the geographic area surveyed 

may be expanded incrementally until employerprovided survey sample size requirement is met 

(i.e., at least 3 employers and 30 workers). A survey 

may be expanded to cover a geographic area larger 

than the area of intended employment in which the 

job opportunity is located only where that area of 

intended employment does not generate a sufficient 

sample to meet minimum size requirements. Under 

that condition, the survey may only be expanded 

to geographic areas that are contiguous to the area 

of intended employment only to the extent 

necessary to generate a sample size sufficient to 

satisfy the minimum sample size requirement. The 

survey’s expansion may take place across state 

lines, as long as the new area(s) added to the survey 

are contiguous to the area of intended employment 

in which the job opportunity is located and the 

expansion extends only as much as is necessary to 

satisfy the minimum sample size requirement. If the 

surveyor determines after surveying the area of 

intended employment that the survey does not meet 

minimum sample size requirements, it must either 

conduct a new random sample of the expanded area 

(including the area of intended employment) or 

make a reasonable, good faith effort to survey all 

employers employing workers in the occupation 

and expanded area surveyed.’’). 

44 80 FR 24146, 24174 (Apr. 29, 2015). 

45Williams, 648 F. Supp. 3d at 96 (holding DOL 

erred in accepting a statewide survey where the 

justification for expansion of the geographic area 

required by § 655.10(f)(3) had not been provided). 46 Id. 

intended employment; (2) the expansion 

is required to meet either the 30-worker 

or 3-employer minimum; and (3) the 

geographic area is expanded no more 

than necessary to meet these minimum 

requirements. 

Consistent with the 2015 Wage Rule, 

a geographic area may be expanded in 

two ways. First, if 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 local area of 

employment. In those cases, the 

surveyor may elect, at the outset, to 

survey a geographic area larger than the 

area of employment. In its submission to 

the NPWC, the survey must explain the 

decision to expand the survey area at 

the outset, and describe the extent of the 

expansion and the reason why the 

expansion was needed to meet the 

regulatory requirements.38

Second, a survey may be expanded 

incrementally. Expansion would be 

permitted only if the survey of the area 

of intended employment did not yield 

sufficient wage data to meet the 

minimum sample size requirements. In 

such circumstances, consistent with 

current guidance, ‘‘the geographic area 

of consideration should not be 

expanded more than is necessary’’ to 

meet either the 30-worker or 3- 

employer, or both, requirements of 

§ 655.10(f)(4)(ii).39 For example, as 

noted in the guidance, it would be 

‘‘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.’’ 40 In all cases where an area larger 

than the area of intended employment is 

surveyed, the survey would have to 

establish that the expansion was 

necessary to meet either the 30-worker 

or 3-employer requirements of 

§ 655.10(f)(4)(ii).41

Further, consistent with current 

practice, incremental geographic area 

expansion beyond the area of intended 

employment must be consistent with 

OEWS survey methodology,42 meaning 

that a ‘‘survey’s expansion may take 

place across state lines, as long as the 

new area(s) added to the survey [is] 

contiguous to the area of intended 

employment in which the job 

opportunity is located and the 

expansion extends only as much as is 

necessary to satisfy the minimum 

sample size requirement.’’ 43 Any such 

expansion is limited to geographic areas 

that are contiguous to the area of 

intended employment because the 

NPWC’s ‘‘experience demonstrates that 

some employers have submitted surveys 

that expanded the survey area using 

remote geographic areas located far from 

the job opportunity. [The Department] 

see[s] no reason for a survey to ignore 

areas immediately surrounding the job 

opportunity in favor of geographic areas 

located large distances from the job.’’ 44

For example, in Williams, the surveyor 

expanded the geographic area of the 

survey without explaining why a 

statewide survey was needed instead of 

a ‘‘more incremental approach.’’ 45

Thus, the Department continues to 

believe that areas contiguous to the area 

of intended employment, which are 

closest to the area of intended 

employment, better reflect the wages in 

the area of intended employment. As 

such, this proposal seeks to guard 

against the potential for wage 

depression that may result when a 

survey is expanded to geographic areas 

that are remote from the location of the 

job opportunity and where wages may 

be lower. 

The Department is proposing 

clarifying guidance on the steps for 

conducting geographic area expansion if 

the area of intended employment 

surveyed area does not meet the 30- 

worker and 3-employer requirements 

under proposed § 655.10(f)(4)(ii). In 

particular, if a survey is incrementally 

expanded beyond the area of intended 

employment to meet the minimum 

sample size requirements, the surveyor 

would have to survey the newly added 

area using the same method used to 

survey the original area of intended 

employment for consistency.46

Under this proposed rule, if the 

NPWC determines that the geographic 

area of an employer-provided survey 

appears to be broader than permitted by 

§ 655.10(f)(3), the NPWC will review the 

survey for the reason(s) why and how 

the geographic area was expanded, as it 

does under current practice. Then, the 

NPWC may issue a request for 

information for an explanation for the 

reason(s) why and how the geographic 

area was expanded, if needed. An 

example of such an explanation, or a 

part of such an explanation, could be 

that the expansion was needed to meet 

the regulatory requirements because 

there were not enough workers or 

employers in the area of intended 

employment and the area of intended 

employment was fully surveyed (i.e., all 

geographic components such as 

counties and townships, etc.). 

Consistent with current practice, if the 

NPWC determines the geographic area 

was improperly expanded, the NPWC 

would reject the survey and issue an 

OEWS wage for the employer’s job 

opportunity. 

E. Discussion of Proposed Revisions to 

20 CFR 655.10(f)(4) 

Under the current rule, when an 

employer requests a PWD based on a 

survey, the Department requires the 

employer to submit the Form ETA– 

9165, Employer-Provided Survey 

Attestations to Accompany H–2B 

Prevailing Wage Determination Request 

Based on a Non-OES Survey (‘‘Form 

ETA–9165’’), with the Form ETA–9141, 

Application for Prevailing Wage 

Determination (‘‘Form ETA–9141’’). 

This proposed rule would eliminate the 

Form ETA–9165, which was intended to 

streamline the Department’s analysis of 

employer-provided surveys and yield 


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47 Id. 

48 80 FR 24146, 24173 (Apr. 29, 2015). 

49Amended MOU Between the DOL’s 

Employment and Training Administration Office of 

Foreign Labor Certification and Bureau of Labor 

Statistics for the Sharing of Occupational Wage 

Information; see 80 FR 24146, 24173 (Apr. 29, 

2015). 

consistent results. In the Department’s 

experience, however, using the current 

Form ETA–9165 has proven inadequate 

to determine whether the survey meets 

the data and methodological 

requirements of the current rule. The 

Form ETA–9165 is based on an 

employer’s attestations regarding an 

independently conducted survey but in 

practice, the NPWC has requested the 

survey itself for nearly all survey-based 

H–2B prevailing wage requests to 

evaluate whether the survey satisfied 

the data and methodological 

requirements of the regulation. The 

current regulation does not explicitly 

require that the survey be submitted 

concurrently with the Form ETA–9141. 

This has necessitated that the NPWC 

contact the employer to submit the 

actual survey instrument. Thus, to align 

the regulation with the NPWC’s practice 

of reviewing the actual survey 

instrument alongside the submitted 

Form ETA–9141, the Department 

proposes to require the employer to 

submit the survey simultaneously with 

the Form ETA–9141 when an employer 

requests a survey-based H–2B prevailing 

wage from the NPWC. 

The Department therefore proposes to 

discontinue the Form ETA–9165. Doing 

so would benefit PWD applicants by 

eliminating the burden of completing a 

form, and would benefit the Department 

by simplifying the survey-based H–2B 

prevailing wage process. This simplified 

process, in turn, would assist the 

Department in maintaining the integrity 

of the wage determination process for 

the H–2B program because the 

Department would have a copy of the 

survey itself during its review of the 

employer’s Form ETA–9141, without 

needing to rely on the Form ETA–9165 

and without needing to separately 

request the survey, potentially speeding 

up the determination process. 

Consequently, the proposal would better 

protect U.S. worker wages against the 

potential adverse effects that the 

employment of H–2B workers could 

have as the Department would have all 

necessary information available to make 

a determination about the use of the 

survey. 

The elimination of the Form ETA– 

9165 would not affect how employers 

complete the Form ETA–9141. The 

Department does not propose any 

changes to the Form ETA–9141. 

Employers would continue to complete 

the Form ETA–9141 as they have been 

doing. However, the Department 

proposes to revise the General 

Instructions for the Form ETA–9141 by 

including in the Wage Source 

Information section instructions to 

submit the survey concurrently with the 

Form ETA–9141 when an employer 

seeks a survey-based PWD. 

Also, the proposed rule would replace 

the phrase ‘‘the adequacy of the data 

provided and validity of the statistical 

methodology used in conducting the 

survey’’ in paragraph (f)(4) with 

‘‘whether the survey meets all of the 

requirements of this section, including 

the following.’’ This change is intended 

to clarify that the survey would have to 

meet the requirements of proposed 

§ 655.10(f)(4)(i) through (v), in addition 

to containing specific information about 

the survey methodology, such as the 

sample size, sample selection 

procedures, and survey job descriptions. 

1. Discussion of Proposed Revisions to 

20 CFR 655.10(f)(4)(i) 

Initially, the Department proposes a 

technical change to the regulatory text at 

§ 655.10(f)(4)(i) to clarify that the ‘‘good 

faith’’ requirement applies to both 

methods of conducting surveys 

permitted. That is, the surveyor would 

have to make a reasonable, good faith 

attempt to either: (1) contact all 

employers of workers performing the 

same or substantially similar job duties 

in the geographic area surveyed; or (2) 

conduct a randomized sampling of such 

employers. The Department continues 

to believe, as it noted in the preamble 

of the 2015 Wage Rule, that ‘‘[p]roper 

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 pertaining to the 

number of employers and workers who 

must be sampled.’’ 47 This proposed 

provision additionally explains what a 

good faith attempt consists of, as 

discussed below. 

The proposed rule would make two 

substantive changes to the current 

§ 655.10(f)(4)(i). First, it would replace 

the phrase ‘‘in the occupation’’ with 

‘‘performing the same or substantially 

similar job duties.’’ This change would 

reflect the reality that the survey is 

conducted before the employer submits 

its PWD application and the NPWC 

assigns an SOC code (identifying the 

occupation) based on the description of 

job duties contained in the PWD 

application. Consequently, a survey 

conducted based on an occupational 

classification would necessarily require 

speculation about which SOC code the 

NPWC will subsequently assign. As 

explained in the 2015 Wage Rule 

preamble, to assess whether workers are 

performing the ‘‘same or substantially 

similar’’ job duties, ‘‘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’’ 48 in the geographic area 

surveyed. 

Second, the proposed rule would add 

a new requirement to § 655.10(f)(4)(i) 

that at least three follow-up attempts be 

made to contact non-respondents. The 

contact must be made using the same 

method of contact initially used, and at 

least two other active methods of 

contact—such as email, telephone, or 

site visit—across different business days 

and times that are most likely to receive 

the most response. This proposed 

requirement would reduce sampling 

bias and therefore yield more accurate 

and representative survey results. 

2. Discussion of Proposed Revisions to 

20 CFR 655.10(f)(4)(ii) 

Consistent with the 2015 Wage Rule, 

this proposed rule in § 655.10(f)(4)(ii) 

would require surveys submitted under 

this paragraph to include wage data 

from at least 30 workers and 3 

employers. These minimums are based, 

as they were in the 2015 Wage Rule, on 

criteria that BLS OEWS itself uses to 

provide Office of Foreign Labor 

Certification (OFLC) with wage data not 

only for the H–2B program, but also for 

other foreign labor certification 

programs, such as the H–1B program 

and the permanent labor certification 

program. The OEWS survey data has 

been used by OFLC to produce 

prevailing wage data for those programs 

since 1998. In October 2020, this 

arrangement was formalized in a 

memorandum of understanding (MOU) 

between BLS and OFLC, which was 

amended in January 2021 and runs for 

5 years. The MOU describes the 

standards and procedures BLS uses to 

provide wage data to OFLC, stating that 

BLS will ‘‘report wages’’ to OFLC for 

each occupational classification and 

geographic area ‘‘that pass BLS 

confidentiality criteria and include a 

minimum of three (3) establishments 

. . . representing no fewer than 30 

employees reported across the entire 

wage distribution.’’ 49

These minimum criteria and the other 

proposed requirements in § 655.10(f) 

also satisfy the Appropriations Acts’ 

requirement that employer-provided 


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50 8 U.S.C. 1153(b)(5)(E)(iii)(I), (v)(I), (v)(II)(aa), 

(v)(II)(cc), (F)(i)(II). 

51For ‘‘statistically significant,’’ see, e.g., 29 

U.S.C. 1303(a); 20 U.S.C. 6303a; 43 U.S.C. 1748a– 

2(b)(3); 21 U.S.C. 2109(a)(3); 47 U.S.C. 1303(c)(1); 

34 U.S.C. 10554(4)(A), 40101(f)(1). For ‘‘statistically 

valid,’’ see, e.g., 38 U.S.C. 7731(c)(2)(A); 19 U.S.C. 

1677f–1(a)(1), (b), (c)(2)(A), (e)(2)(A)(i); 42 U.S.C. 

1395(f)(5)(C)(ii)(I), (f)(5)(D); 38 U.S.C. 3122(a)(1). 

7731(c)(2)(A); 19 U.S.C. 1677f–1(a)(1), (b), (c)(2)(A), 

(e)(2)(A)(i); 42 U.S.C. 1395(f)(5)(C)(ii)(I), (f)(5)(D); 38 

U.S.C. 3122(a)(1). 

52Effects of the 2016 Department of Labor 

Appropriations Act (Dec. 29, 2015), available at 

https://www.dol.gov/sites/dolgov/files/ETA/oflc/ 

pdfs/H-2B_Prevailing_Wage_FAQs_DOL_

Appropriations_Act.pdf. 

53 Forest Grove School District v. T.A., 557 U.S. 

230, 239–40 (2009). 54 Id. 

55 Id. at 24174. 

56 Id. 

57 Id. at 24171. 

wage surveys be ‘‘statistically 

supported.’’ See Further Consol. 

Appropriations Act, 2024, Public Law 

118–47, Div. D, title I, sec. 110, 138 Stat. 

460, 646 (2024). Elsewhere, Congress 

has used more precise terms of art, the 

meanings of which are widely accepted 

by statisticians, such as ‘‘statistically 

significant’’ and ‘‘statistically valid’’ 

(which appears in the INA itself 50).51

Here, however, Congress chose to use 

the term ‘‘statistically supported,’’ 

which does not appear in the U.S. Code. 

Immediately after Congress first enacted 

the ‘‘statistically supported’’ 

requirement, the Department published 

guidance on its website stating that 

‘‘[w]e interpret the requirement of the 

2016 DOL Appropriations Act that the 

‘methodology and data’ in a private 

survey be ‘statistically supported’ to be 

those methodological criteria for 

surveys set out in the 2015 Wage 

Rule.’’ 52 Congress subsequently reenacted the same language in every DOL 

Appropriations Act since 2016. See 

n.11, supra. Congress is ‘‘presumed to 

be aware of an administrative or judicial 

interpretation of a statute and to adopt 

that interpretation when it re-enacts a 

statute without substantive change.’’ 53

DOL continues to believe that surveys 

that meet the proposed 3-and-30 

minimums BLS has used for 25 years to 

provide OEWS survey data to OFLC, 

along with the other criteria BLS uses to 

provide OEWS survey data to OFLC, 

and the additional survey requirements 

proposed in § 655.10(f) and explained in 

this preamble, are ‘‘statistically 

supported’’ as required by the provision 

in the Department’s appropriation. 

Under the proposed rule, as a new 

requirement in paragraph (f)(4)(ii), 

surveyors would have to continue 

accepting employer responses for at 

least 14 calendar days from the date the 

third notification in proposed paragraph 

(f)(4)(i) is sent even if responses have 

been received from 3 employers 

including the wages of 30 workers. This 

additional 14-calendar day period 

would maximize the opportunity to 

include as much data as possible in the 

survey so that it is as accurate and 

representative as possible. Also, the 

additional 14-day calendar period seeks 

to prevent the skewing of results by an 

employer that could occur should the 

survey conclude as soon as the 

minimum number of responses are 

received. If the minimum sample size 

requirements are not met, the 

geographic area of the survey may be 

extended beyond the area of intended 

employment under proposed 

§ 655.10(f)(3). 

Consistent with the 2015 Wage Rule, 

a survey may not report wages 

selectively, include responses that are 

based on only a portion of the workers 

performing the same or substantially 

similar job duties or limit the wage 

survey data to include only enough data 

to meet the minimum 30-worker 

threshold. The survey would have to 

include wage data for all workers 

performing the same or substantially 

similar job duties regardless of their 

level of skill, education, seniority, 

experience, or immigration status.54 If, 

after following-up with non-respondents 

as described above, a surveyor could not 

collect wage data from at least 3 

employers for at least 30 workers, the 

surveyor would be permitted to expand 

the survey beyond the area of intended 

employment as discussed above in the 

section on § 655.10(f)(3) of this 

proposed regulation. 

3. Discussion of Proposed Revisions to 

20 CFR 655.10(f)(4)(iii) 

Consistent with the 2015 Wage Rule, 

in § 655.10(f)(4)(iii), bona fide third 

parties would have to conduct any 

employer-provided surveys submitted 

under proposed § 655.10(f)(1)(ii) or (iii). 

This proposed rule clarifies that not 

only would the H–2B employer, its 

agent, and its representative be 

prohibited from conducting the 

employer’s survey, but so would any of 

the employer’s employees and their 

attorney. The proposed rule would 

exclude these non-bona fide third 

parties to prevent their personal selfinterests from affecting the reliability of 

employer-provided surveys, and in the 

case of employees, prevent an employer 

from placing any undue pressure on the 

employee conducting the survey. As the 

Department stated in the preamble of 

the 2015 Wage Rule and affirms here, 

‘‘[e]ven 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 . . . 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.’’ 55

The preamble also explained that 

requiring a bona fide third party to 

conduct an employer-provided survey 

would ‘‘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 proposed § 655.10(f)(1)(ii) 

or (iii) would be permitted to submit a 

survey conducted and issued by a 

state.’’ 56

4. Discussion of Proposed Revisions to 

20 CFR 655.10(f)(4)(iv) 

Consistent with the 2015 Wage Rule, 

the proposed rule would require 

employer-provided surveys under 

proposed § 655.10(f)(1) be conducted 

across industries, which means 

surveying employers in all industries 

employing workers performing the same 

or substantially similar job duties as 

those contained in the job opportunity 

in the area of intended employment.57

This requirement, the purpose of which 

is to cast as wide a net as possible to 

obtain the most representative data 

available, would be consistent with the 

Department’s criteria for review of 

employer-provided surveys in the H–1B 

temporary program and permanent labor 

certification program. Surveying across 

industries provides a broader 

representation of wage data for jobs 

requiring the same or substantially 

similar duties, irrespective of the sector 

or segment of the economy where the 

job duties are being performed. Thus, 

the proposed rule would clarify that 

‘‘across industries’’ means all industries 

that employ workers performing similar 

or substantially similar job duties. For 

example, a wage survey for a 

Landscaping and Groundskeeping 

Workers job opportunity that surveyed 

only hotels would not satisfy the 

‘‘across industries’’ requirements 

because industries other than hotels 

employ such workers. Surveying 

workers performing these job duties not 

only at hotels, but also workers 

performing similar or substantially 

similar job duties at hospitals, schools, 

country clubs, golf courses, and other 

outdoor sports venues, among others, 

would provide a better representation of 

wages within that occupation. 


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58 Id. at 24175. 

59See ‘‘How are ‘wages’ defined by the OEWS 

survey?’’ OEWS, Frequently Asked Questions, 

available at https://www.bls.gov/oes/oes_ques.htm. 

60 80 FR 24146, 24175 (Apr. 29, 2015). 

61For purposes of comparison, OEWS estimates 

are based on data collected over a 3-year period, 

with the survey updated every 6 months based on 

more recent data. The May 2022 estimates are based 

on responses from six semiannual panels collected 

over a 3-year period: May 2022, November 2021, 

May 2021, November 2020, May 2020, and 

November 2019. See Technical Notes for May 2022 

OEWS Estimates (bls.gov), available at https://

www.bls.gov/oes/current/oes_tec.htm. In addition, 

in the 1990s, the DOL recommended that State 

employment service agencies (SESAs) use their inhouse wage surveys for only 2 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.’’). 

62 20 CFR 655.10(f)(5). 

63The proposed rule is expected to have an 

undiscounted annual cost of $1,369, an 

Continued 

5. Discussion of Proposed Revisions to 

20 CFR 655.10(f)(4)(v) 

This proposed rule would continue 

the requirement under the current rule 

that all types of pay be included in 

employer-provided wage surveys. As 

stated in the preamble of the 2015 Wage 

Rule, all types of pay include ‘‘the base 

rate of pay, commissions, cost-of-living 

allowances, deadheading pay, 

guaranteed pay, hazard pay, incentive 

pay, longevity pay, piece rate, portal-toportal rate, production bonuses, and 

tips.’’ 58 For example, if an employer 

guarantees a minimum hourly wage, but 

pays other types of monetary 

compensation, including tips, 

commissions, or piece rates, in excess of 

this minimum hourly wage, the total of 

the minimum hourly wage and these 

additional types of compensation would 

have to be included in the hourly wage 

paid reported in the survey. This 

proposal remains consistent with the 

methodology of the OEWS survey.59

The Department continues to think that, 

as explained in the preamble to the 2015 

Wage Rule, ‘‘[i]f we did not require 

inclusion in the survey wage reported of 

all of the types of pay reported to the 

OE[W]S, those limited surveys 

permitted by [the rule] would 

necessarily undercut the OE[W]S by not 

reporting the complete wage paid. We 

understand that employers ordinarily 

calculate the wage paid for OE[W]S 

purposes by consulting payroll 

records.’’ 60 While the Department 

recognizes that this requirement will 

impose some burden on employers, 

given that the requirement is consistent 

with how the OEWS is administered, 

and given the importance of the 

Department having a complete picture 

of the compensation paid, the 

Department does not think that the 

burden outweighs the benefit of this 

requirement. 

F. Discussion of Proposed Regulatory 

Revisions to 20 CFR 655.10(f)(5) 

The current rule requires an 

employer-provided survey to be: (1) the 

most current edition of the survey; and 

(2) based on wages paid to workers no 

more than 24 months before the survey 

was submitted to the NPWC. The 

proposed rule would maintain these 

same two requirements, but the 

language regarding the second 

requirement would be changed to reflect 

the proposed new requirement in 

paragraph (f)(4) that the survey must be 

submitted to the NPWC together with 

the employer’s Form ETA–9141.61 In 

addition, the proposed rule would 

eliminate the first sentence currently in 

§ 655.10(f)(5), which states that ‘‘[t]he 

survey must be based upon recently 

collected data,’’ 62 because the 

remaining sentence specifies the two 

components of ‘‘recently collected 

data,’’ as mentioned above. Therefore, 

the introductory sentence is 

unnecessary. 

The requirement that the survey be 

based on wages paid to workers in the 

prior 24 months was originally codified 

in the 2008 Rule, 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), and retained in 

the 2015 Wage Rule. The 24-month and 

most-current-edition standards would, 

together, continue to protect both U.S. 

and H–2B workers’ wages by ensuring 

that employer-provided surveys are 

based on the most recent wage 

information available. 

IV. Administrative Information 

A. Executive Order 12866: Regulatory 

Planning and Review; Executive Order 

14094: Modernizing Regulatory Review; 

and Executive Order 13563: Improving 

Regulation and Regulatory Review 

Under E.O. 12866, the Office of 

Management and Budget’s (OMB) Office 

of Information and Regulatory Affairs 

(OIRA) determines whether a regulatory 

action is significant and, therefore, 

subject to the requirements of the E.O. 

and review by OMB. 58 FR 51735 (Oct. 

4, 1993). Section 3(f) of E.O. 12866, as 

amended by E.O. 14094, 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 $200 million or more, or 

adversely affects in a material way the 

economy, a sector of the economy, 

productivity, competition, jobs, the 

environment, public health or safety, or 

State, local, Territorial, or Tribal 

Governments or communities; (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 legal 

or policy issues arising out of legal 

mandates, the President’s priorities, or 

the principles set forth in the E.O. 88 FR 

21879 (Apr. 11, 2023). OIRA has 

designated this NPRM as ‘‘not 

significant’’ per E.O. 12866 and waived 

review. 

E.O. 13563 directs agencies to, among 

other things, propose or adopt a 

regulation only upon a reasoned 

determination that its benefits justify its 

costs; the regulation is tailored to 

impose the least burden on society, 

consistent with achieving the regulatory 

objectives; and in choosing among 

alternative regulatory approaches, the 

agency has selected those approaches 

that maximize net benefits. E.O. 13563 

recognizes that some costs and 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. 

Outline of the Analysis 

Section IV.A.1 describes the need for 

the proposed rule, and Section IV.A.2 

describes the process used to estimate 

the costs of the rule and the general 

inputs used, such as wages and number 

of affected entities. Section IV.A.3 

explains how the provisions of the 

proposed rule would result in costs and 

cost savings and presents the 

calculations the Department used to 

estimate them. In addition, Section 

IV.A.4 provides a description of 

qualitative benefits. Section IV.A.5 

summarizes the estimated 1st-year and 

10-year total and annualized costs and 

cost savings of the proposed rule. 

Summary of the Analysis 

The Department estimates that the 

proposed rule would result in costs and 

cost savings. As shown in Exhibit 1, the 

proposed rule is expected to have an 

annualized cost of $1,285, an 

annualized cost savings of $5,466, and 

a net cost savings of $4,535 at a discount 

rate of 2 percent.63


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undiscounted annual cost savings of $4,861, and an 

undiscounted annual net cost savings of $3,492 in 

2023 dollars. 

64BLS. (2024). May 2023 National Occupational 

Employment and Wage Estimates: 13–1071— 

Human Resources Specialists. Retrieved from: 

https://www.bls.gov/oes/current/oes131071.htm. 

65Cody Rice, U.S. Environmental Protection 

Agency, ‘‘Wage Rates for Economic Analyses of the 

Toxics Release Inventory Program,’’ June 10, 2002, 

https://www.regulations.gov/document?D=EPA-HQOPPT-2014-0650-0005. 

66BLS. (Mar. 2024). ‘‘Employer Costs for 

Employee Compensation.’’ Retrieved from: https:// 

www.bls.gov/news.release/ecec.nr0.htm. 

EXHIBIT 1—ESTIMATED MONETIZED COSTS AND COST SAVINGS OF THE PROPOSED RULE

[2023 $] 

Costs Cost savings Net cost savings 

1st Year ............................................................................................................... $12,850 $5,359 ¥$7,492 

Undiscounted Annual ........................................................................................... 1,285 5,359 4,074

Annualized with at a Discount Rate of 2% .......................................................... 1,431 5,359 4,535 

The total cost of the proposed rule is 

associated with rule familiarization and 

the new requirements that the surveyor 

must continue to accept responses for at 

least 14 calendar days after receiving the 

third employer response to the survey 

request. In addition, the surveyor must 

include no fewer than three contacts 

with non-respondents, using the same 

method of contact initially used, and at 

least two other active methods of 

contact across different business days 

and times that are most likely to receive 

the most response. Cost savings are the 

results of the elimination of the Form 

ETA–9165, Employer-Provided Survey 

Attestations to Accompany H–2B 

Prevailing Wage Determination Request 

Based on a Non-OES Survey. See the 

costs and cost savings subsections of 

Section IV.A.3 (Subject-by-Subject 

Analysis). 

1. Need for Regulation 

As discussed further in Section II.F, 

supra, this NPRM is required by a court 

ruling that, in promulgating the 2015 

Wage Rule, the agencies failed to 

comply with the APA’s notice-andcomment requirements. Williams v. 

Walsh, 648 F. Supp. 3d 70 (D.D.C. 

2022). Consequently, the court 

remanded the rule ‘‘for further 

consideration consistent with’’ its 

opinion. Id. at 99. Additionally, in light 

of issues raised (although not decided) 

in that litigation, OFLC is proposing to 

revise the data and methodological 

criteria for employer-provided wage 

surveys. 

2. Analysis Considerations 

The Department estimated the costs 

and the cost savings of the proposed 

rule relative to the existing baseline (i.e., 

the current practices for complying, at a 

minimum, with the H–2B program as 

currently codified at 20 CFR part 655). 

In accordance with the regulatory 

analysis guidance articulated in OMB’s 

Circular A–4 and consistent with the 

Department’s practices in previous 

rulemakings, this regulatory analysis 

focuses on the likely consequences of 

the proposed rule (i.e., costs, cost 

savings, and qualitative benefits). The 

analysis covers 10 years (from 2025 

through 2034) to ensure it captures 

major costs, cost savings, and qualitative 

benefits that accrue over time. The 

Department expresses all quantified 

impacts in 2023 dollars and uses 

undiscounted annuals and a discount 

rate of 2 percent, pursuant to Circular 

A–4. 

Exhibit 2 shows the total number of 

H–2B PWD requests and the number of 

submissions requesting a survey wage 

for FYs 2020—2023. The Department 

used this information to estimate the 

costs and cost savings of the proposed 

rule. 

EXHIBIT 2—NUMBER OF UNIQUE SUBMISSIONS FOR H–2B SURVEY REQUESTS * 

FY Number of H–2B 

PWD requests 

Number of H–2B 

wage survey requests 

% of total submissions 

requesting survey wage 

2020 ............................................................................................. 11,629 77 0.7 

2021 ............................................................................................. 14,748 161 1.1 

2022 ............................................................................................. 24,914 378 1.5 

2023 ............................................................................................. 24,715 267 1.1 

Average ................................................................................ 19,002 221 1.1 

* Data source: OFLC performance data for FY2020–2023. 

a. Compensation Rates 

In Section IV.A.3 (Subject-by-Subject 

Analysis), the Department presents the 

costs, including labor, associated with 

the implementation of the provisions of 

the proposed rule. Exhibit 3 presents the 

hourly compensation rates for the 

occupational categories expected to 

experience a change in the number of 

hours necessary to comply with the 

proposed rule. The Department used the 

mean hourly wage rate for private sector 

human resources (HR) specialists (SOC 

code 13–1071).64 Wage rates are 

adjusted to reflect total compensation, 

which includes nonwage factors such as 

overhead and fringe benefits (e.g., health 

and retirement benefits). We use an 

overhead rate of 17 percent 65 and a 

fringe benefits rate based on the ratio of 

average total compensation to average 

wages and salaries in 2023. For private 

sector employees, we use a fringe 

benefits rate of 42 percent.66 We then 

multiply the loaded wage factor and the 

overhead rate by the wage rate to 

calculate an hourly compensation rate. 

The Department used the hourly 

compensation rates presented in Exhibit 

3 throughout this analysis to estimate 

the labor costs for each provision. 


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EXHIBIT 3—COMPENSATION RATES

[2023 Dollars] 

Position Grade 

level 

Base hourly 

wage rate Loaded wage factor Overhead costs Hourly compensation rate 

(a) (b) (c) (d) = a + b + c 

HR Specialist ............................................... N/A $36.573 $15.36 ($36.57 × 0.42) $6.22 ($36.57 × 0.17) $58.15 

3. Subject-by-Subject Analysis 

The Department’s analysis below 

covers the costs, cost savings, and 

qualitative benefits of the proposed rule. 

This proposed rule includes the 

quantified cost of rule familiarization, 

the unquantified cost of additional 

survey requirements, and the quantified 

cost savings of elimination of the Form 

ETA–9165, and qualitative discussion of 

benefits. 

a. Costs 

The following section describes the 

quantified and unquantified costs of the 

proposed rule. 

i. Rule Familiarization 

If the proposed rule takes effect, H–2B 

employers who are submitting an 

employer-provided survey would need 

to familiarize themselves with the new 

regulations. Consequently, this would 

impose a one-time cost in the 1st year. 

To estimate the 1st-year cost of rule 

familiarization, the number of unique 

H–2B employers who are submitting an 

employer-provided survey (221) was 

multiplied by the estimated amount of 

time required to review the rule (1 

hour). The Department requests public 

comments and inputs regarding this 

estimate. This number was then 

multiplied by the hourly compensation 

rate of HR specialists ($58.15 per hour). 

This calculation results in a one-time 

undiscounted cost of $12,850 in the 1st 

year after the proposed rule takes effect. 

The annualized cost over the 10-year 

period is $1,431 at a discount rate of 2 

percent. An undiscounted annual cost 

over the 10-year period is $1,285. 

ii. Additional Survey Requirements 

The Department proposes in the 

NPRM to revise the data and 

methodological criteria for employerprovided wage surveys to require that a 

survey must continue to accept 

responses for at least 14 calendar days 

after receiving the minimum number of 

required responses from at least 3 

employers that together include wages 

for at least 30 workers. In addition, the 

surveyor must include no fewer than 

three contacts with non-respondents, 

using the same method of contact 

initially used, and at least two other 

active methods of contact across 

different business days and times that 

are most likely to generate responses. 

The Department expects these new 

requirements may add a small 

compliance cost to surveyors, but we 

cannot quantify it due to the data 

limitations. The Department seeks 

public comments and inputs that will 

help us to quantify this cost impact to 

surveyors. 

b. Cost Savings 

The following section describes the 

cost savings of the proposed rule. 

i. Elimination of the Form ETA–9165 

The Department proposes to eliminate 

the Form ETA–9165, Employer-Provided 

Survey Attestations to Accompany H–2B 

Prevailing Wage Determination Request 

Based on a Non-OES Survey. Each 

employer would have spent 25 minutes 

to fill out the attestation form if it had 

not been eliminated. To estimate the 

cost savings per year, the number of 

unique H–2B employers who are 

expected to submit an employerprovided survey (221) was multiplied 

by the estimated amount of time 

required to fill out the attestation form 

(25 minutes or 0.417 hours). This 

number was then multiplied by the 

hourly compensation rate of HR 

specialists ($58.15 per hour). This 

calculation results in an annual cost 

savings of $5,359 after the proposed rule 

takes effect. The annualized cost savings 

over the 10-year period is $5,359 at a 

discount rate of 2 percent and 

undiscounted annual cost savings at 

$5,359. 

c. Qualitative Benefits Discussion 

The following section describes the 

benefits of the proposed rule. 

i. Improved Accuracy in Prevailing 

Wage Data 

The Department’s proposal would 

benefit H–2B workers and workers in 

corresponding employment by adding a 

new condition to § 655.10(f)(4)(i) that at 

least three follow-up attempts be made 

to contact non-respondents. This 

proposed requirement that the surveyor 

make no fewer than three contacts with 

non-respondents, first using the same 

method of contact initially used, and 

subsequently two other active methods 

of contact across different business days 

and times that are most likely to 

generate responses, is intended to 

reduce sampling bias and, therefore, 

yield more accurate survey results. 

Additionally, under the proposed 

rule, as a new requirement, surveyors 

would have to continue accepting 

employer responses for at least 14 

calendar days from the date the third 

notification in proposed paragraph 

(f)(4)(i) is sent, even after receiving 

responses from 3 employers including 

the wages of 30 workers. This additional 

14-calendar day period would maximize 

the opportunity to include as much data 

as possible in the survey so that it is as 

accurate and representative as possible. 

Also, the additional 14-day calendar 

period would prevent: (1) the skewing 

of results that could occur should the 

survey conclude as soon as the 

minimum number of responses are 

received; and (2) the exclusion of 

available data from the survey. 

ii. Greater Efficiency in EmployerProvided Survey Process 

An additional benefit of this proposal 

would be an increase in efficiency in the 

employer-provided survey process. 

Employers would be required to submit 

the survey with the Form ETA–9141 

when an employer requests a surveybased H–2B prevailing wage from the 

NPWC and such survey should contain 

the necessary information about the 

survey methodology (e.g., sample size 

and source, sample selection 

procedures, and survey job 

descriptions). This would reduce the 

need for the NPWC to routinely issue 

Requests for Information in most cases 

involving employer-provided surveys. 

Efficiency is inherently valuable as a 

principle of good government and 

provides benefits to the public at large, 

including reducing the need to routinely 

issue Requests for Information necessary 

for the Department’s analyses. 

4. Summary of the Analysis 

Exhibit 4 summarizes the estimated 

total costs and cost savings of the 

proposed rule over the 10-year analysis 

period. The Department estimates the 


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I I I 
90660 Federal Register / Vol. 89, No. 222 / Monday, November 18, 2024 / Proposed Rules 

67 $4,535÷221 = $20.52. 

68 2017 Statistics of U.S. Businesses Annual Data 

Tables by Establishment Industry, https://

www.census.gov/data/tables/2017/econ/susb/2017- 

susb-annual.html. 

annualized costs of the proposed rule at 

$1,431 for rule familiarization, the 

annualized cost savings at $5,359 for 

eliminating the Form ETA–9165 and the 

annualized net cost savings at $4,535, 

each at a discount rate of 2 percent. 

Unquantified costs include the new 

requirements that the surveyor must 

continue to accept responses for at least 

14 calendar days from the date the third 

notification is sent even if responses 

have been received from 3 employers 

including the wages of 30 workers. The 

surveyor must also include no fewer 

than three contacts with nonrespondents, using the same method of 

contact initially used, and at least two 

other active methods of contact across 

different business days and times that 

are most likely to receive the most 

response. Unquantified benefits include 

improved accuracy in prevailing wage 

surveys due to permitting employerprovided surveys in instances where 

OEWS data is unavailable or 

insufficient, and increased transparency 

in the employer survey process. 

EXHIBIT 4—ESTIMATED MONETIZED COSTS AND COST SAVINGS OF THE PROPOSED RULE

[2023 $] 

Year Costs Cost savings Net cost savings 

2025 ..................................................................................................................... $12,850 $5,359 $7,492 

2026 ..................................................................................................................... ................................ 5,359 5,359 

2027 ..................................................................................................................... ................................ 5,359 5,359 

2028 ..................................................................................................................... ................................ 5,359 5,359 

2029 ..................................................................................................................... ................................ 5,359 5,359 

2030 ..................................................................................................................... ................................ 5,359 5,359 

2031 ..................................................................................................................... ................................ 5,359 5,359 

2032 ..................................................................................................................... ................................ 5,359 5,359 

2033 ..................................................................................................................... ................................ 5,359 5,359 

2034 ..................................................................................................................... ................................ 5,359 5,359 

Undiscounted annual ........................................................................................... 1,285 5,359 4,074

Annualized with a Discount Rate of 2% .............................................................. 1,431 5,359 4,535 

B. Regulatory Flexibility Analysis and 

Small Business Regulatory Enforcement 

Fairness Act and Executive Order 

13272: Proper Consideration of Small 

Entities in Agency Rulemaking 

The Regulatory Flexibility Act of 

1980, 5 U.S.C. 601 et seq., as amended 

by the Small Business Regulatory 

Enforcement Fairness Act of 1996, 

requires agencies to determine whether 

regulations will have a significant 

economic impact on a substantial 

number of small entities. Pursuant to 5 

U.S.C. 605(b), the head of the agency 

(i.e., the undersigned Assistant 

Secretary for Employment and 

Training), certifies that the proposed 

rule does not have a significant 

economic impact on a substantial 

number of small entities. On average, 

small employers who are submitting an 

employer-provided survey will incur a 

net cost saving of $20.52 per year at a 

discount rate of 2 percent.67 This will be 

far less than 1 percent of the revenue for 

the smallest of small H–2B employers. 

For example, the average annual 

revenue for firms in the landscaping 

industry (North American Industry 

Classification System code 561730) with 

fewer than five employees is 

$238,877.68 $20.52 is about 0.009 

percent of the average revenue of 

$238,877. The Department therefore 

certifies that the proposed rule does not 

have a significant economic impact on 

a substantial number of small entities. 

C. Paperwork Reduction Act 

The INA, as amended, assigns 

responsibilities to the Secretary of Labor 

relating to the entry and employment of 

certain categories of immigrant and 

nonimmigrant foreign workers under 

the permanent labor certification 

(PERM), H–2B, H–1B, H–1B1, and E–3 

programs. The INA requires the 

Secretary of Labor to certify that the 

employment of foreign workers under 

certain visa classifications will not 

adversely affect the wages and working 

conditions of similarly employed 

workers in the United States. To render 

this certification, the Secretary of Labor 

determines the prevailing wage for the 

occupational classification and area of 

intended employment and ensures the 

employer offers a wage to the foreign 

worker that equals at least the prevailing 

wage. The Department uses Form ETA– 

9141 to collect information necessary to 

determine the prevailing wage for the 

applicable occupation and area of 

intended employment. This information 

collection is subject to the Paperwork 

Reduction Act (PRA), 44 U.S.C. 3501 et 

seq. A Federal agency generally cannot 

conduct or sponsor a collection of 

information, and the public is generally 

not required to respond to an 

information collection, unless OMB 

approves it under the PRA and it 

displays a currently valid OMB Control 

Number. In addition, notwithstanding 

any other provisions of law, no person 

will generally be subject to penalty for 

failing to comply with a collection of 

information that does not display a 

valid Control Number. See 5 CFR 

1320.5(a), 1320.6. The Department 

obtained OMB approval for this 

information collection under Control 

Number 1205–0508. The Department 

seeks PRA authorization for this 

information collection for 3 years. 

This information collection request, 

concerning OMB Control No. 1205– 

0508, includes the collection of 

information related to the Department’s 

PWDs. Prior to submitting applications 

for most labor certifications or a labor 

condition application to the Secretary of 

Labor, employers must obtain a 

prevailing wage for the job opportunity 

based on the place and type of 

employment in order to ensure that the 

employment of foreign workers does not 

adversely affect the wages and working 

conditions of U.S. workers similarly 

employed. Form ETA–9141, 

Application for Prevailing Wage 

Determination, is used to collect the 

necessary information from employers 

to enable the Department to issue a 

prevailing wage for the occupation and 

location of the job opportunity. The 

Form ETA–9141 is used in the PERM, 

H–2B, H–1B, H–1B1, and E–3 programs 

administered by the Department. In 

order to meet its statutory 

responsibilities under the INA, the 

Department must request information 

from employers seeking to hire and 

import foreign labor. The Department 

uses the information collected to 


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69E.O. 13132, Federalism, 64 FR 43255 (Aug. 10, 

1999). 

70E.O. 13175, Consultation and Coordination 

with Indian Tribal Governments, 65 FR 67249 (Nov. 

9, 2000). 

determine the minimum wage that must 

be offered, advertised in recruitment, 

and paid by an employer to foreign 

workers in most programs. 

The collection of information under 

the current OMB Control No. 1205–0508 

was approved by OMB on September 8, 

2022, and was implemented into OFLC 

systems on February 6, 2024. 

The Department now proposes 

revisions to this information collection, 

covered under OMB Control No. 1205– 

0508, to further revise the information 

collection tools based on regulatory 

changes in this proposed rule. As noted 

above, the current regulations do not 

explicitly require that the survey be 

submitted concurrently with the Form 

ETA–9141, but the proposed rule, as 

well as the Form ETA–9141, General 

Instruction, would require that the 

survey be filed at the same time as 

submission of the Form ETA–9141. 

Further, the Department proposes to 

eliminate the use of the Form ETA– 

9165, Employer-Provided Survey 

Attestations to Accompany H–2B 

Prevailing Wage Determination Request 

Based on a Non-OEWS Survey. The 

Department proposes to revise the Form 

ETA–9141 to conform with the 

proposed rule’s requirement that 

employers, when seeking a survey-based 

prevailing wage, submit the survey to 

the Department with the Form ETA– 

9141 for consideration, rather than 

complete the Form ETA–9165. 

The proposed revisions to the Form 

ETA–9141, General Instructions, and 

the proposed elimination of Form ETA– 

9165 and its instructions will align 

information collection requirements 

with the Department’s proposed 

regulatory framework and continue the 

ongoing efforts to provide greater clarity 

to employers on regulatory requirements 

greater accuracy in PWDs, and greater 

standardizing and streamlining this 

information collection to reduce 

employer time and burden in preparing 

applications. The proposed changes will 

also promote greater efficiency and 

transparency in the review and issuance 

of PWDs for the Department’s 

employment-based foreign labor 

certification and labor condition 

programs. The information collection 

includes the Form ETA–9141, 

Application for Prevailing Wage 

Determination (‘‘Form ETA–9141’’); 

Form ETA–9141, General Instructions 

(‘‘General Instructions’’); and Form 

ETA–9141, Appendix A, Request for 

Additional Worksite(s) (‘‘Appendix A’’). 

Overview of Information Collection 

Proposed by This NPRM 

Title: Application for Prevailing Wage 

Determination. 

Type of Review: Revision of a 

Currently Approved Information 

Collection. 

OMB Control Number: 1205–0508. 

Affected Public: Private Sector— 

Businesses or other for-profits, not-for 

profit institutions, and farms. 

Total Estimated Number of 

Respondents: 120,042. 

Total Estimated Number of 

Responses: 462,470. 

Total Estimated Annual Time Burden: 

211,425 hours. 

Total Estimated Annual Other Costs 

Burden: $191,769. 

D. Unfunded Mandates Reform Act of 

1995 

The Unfunded Mandates Reform Act 

of 1995 (UMRA) (Pub. L. 104–4, 

codified at 2 U.S.C. 1501 et seq.) is 

intended, among other things, to curb 

the practice of imposing unfunded 

Federal mandates on State, local, and 

Tribal Governments. UMRA requires 

Federal agencies to assess a regulation’s 

effects on State, local, and Tribal 

Governments, as well as on the private 

sector, except to the extent the 

regulation incorporates requirements 

specifically set forth in law. Title II of 

the UMRA requires each Federal agency 

to prepare a written statement assessing 

the effects of any regulation that 

includes any Federal mandate in a 

proposed or final agency rule that may 

result in $100 million or more 

expenditure (adjusted annually for 

inflation) in any 1 year by State, local, 

and Tribal Governments, in the 

aggregate, or by the private sector. A 

Federal mandate is any provision in a 

regulation that imposes an enforceable 

duty upon State, local, or Tribal 

Governments, or upon the private 

sector, except as a condition of Federal 

assistance or a duty arising from 

participation in a voluntary Federal 

program. 

This proposed rule does not result in 

unfunded mandates for the public or 

private sector because private 

employers’ participation in the program 

is voluntary, and State governments are 

reimbursed for performing activities 

required under the program. The 

requirements of title II of the UMRA, 

therefore, do not apply, and the 

Department has not prepared a 

statement under the UMRA. 

E. Executive Order 13132 (Federalism) 

This proposed rule would not have 

substantial direct effects on the States, 

on the relationship between the 

National Government and the States, or 

on the distribution of power and 

responsibilities among the various 

levels of government. Therefore, in 

accordance with sec. 6 of E.O. 13132,69

it is determined that this proposed rule 

does not have sufficient federalism 

implications to warrant the preparation 

of a federalism summary impact 

statement. 

F. Executive Order 13175 (Consultation 

and Coordination With Indian Tribal 

Governments) 

The Department has reviewed this 

proposed rule in accordance with E.O. 

13175 70 and has determined that it does 

not have Tribal implications. This 

proposed 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 Tribal Governments. 

List of Subjects in 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. 

For the reasons discussed in the 

preamble, the Department of Labor 

proposes to amend 20 CFR part 655 as 

follows: 

PART 655—TEMPORARY 

EMPLOYMENT OF FOREIGN 

WORKERS IN THE UNITED STATES 

■ 1. The authority citation for § 655.0 of 

part 655 is revised and the authority 

citation for subpart A continues to read 

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. 1733, 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; sec. 6, Pub. L. 115–218, 132 Stat. 

1547 (48 U.S.C. 1806); div. D, title I, sec. 110, 

Pub. L. 118–47, 138 Stat. 460, 646; and 8 CFR 

214.2(h)(4)(i) and (h)(6)(iii). 


lotter on DSK11XQN23PROD with PROPOSALS1
90662 Federal Register / Vol. 89, No. 222 / Monday, November 18, 2024 / Proposed Rules 

Subpart A issued under 8 CFR 214.2(h). 

* * * * * 

■ 2. Amend § 655.10 by revising 

paragraphs (a), (b)(2), (e), and (f) to read 

as follows: 

§ 655.10 Determination of prevailing wage 

for temporary labor certification purposes. 

(a) Offered wage. The employer must 

advertise the position to all potential 

workers at a wage at least equal to the 

prevailing wage obtained from the 

NPWC, or the Federal, State, or local 

minimum wage, whichever is highest. 

The employer must offer and pay this 

wage (or higher) to both its H–2B 

workers and its workers in 

corresponding employment. The 

issuance of a prevailing wage 

determination (PWD) under this section 

does not permit an employer to pay a 

wage lower than the highest wage 

required by any applicable Federal, 

State, or local law. 

(b) * * * 

(1) * * * 

(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 and Wage Statistics 

(OEWS) survey, unless the employer 

provides a survey acceptable to the 

NPWC under paragraph (f) of this 

section. 

* * * * * 

(e) NPWC action. The NPWC will 

determine the PWD, indicate the source, 

and return the Application for 

Prevailing Wage Determination (Form 

ETA–9141) with the determination and 

the NPWC’s endorsement to the 

employer. 

(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 PWD only if the 

employer’s 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 OEWS does 

not collect data, or in a geographic area 

where the OEWS provides an arithmetic 

mean only at a national level for 

workers employed in the SOC; or 

(iii) The job opportunity is within an 

occupational classification of the SOC 

system designated as an ‘‘All Other’’ 

classification. 

(2) Any such survey must provide the 

arithmetic mean of the wages of all 

workers performing the same or 

substantially similar job duties 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 Form 

ETA–9141, a copy of the survey 

containing specific information about 

the survey methodology, including 

sample size and source, sample 

selection procedures, and survey job 

descriptions, to allow a determination of 

whether the survey meets all the 

requirements of this section, in addition 

to the following: 

(i) The surveyor made a reasonable, 

good faith attempt to either contact all 

employers of workers performing the 

same or substantially similar job duties 

in the geographic area surveyed or 

conduct a randomized sampling of such 

employers. No fewer than three contacts 

with non-respondents must be made, 

first using the same method of contact 

initially used, and subsequently two 

other active methods of contact across 

different business days and times that 

are most likely to generate survey 

responses; 

(ii) The survey must include wage 

data from at least 30 workers performing 

the same or substantially similar job 

duties and at least 3 employers of such 

workers. The survey must continue to 

remain open to accept responses for at 

least 14 calendar days from the date the 

third notification in paragraph (f)(4)(i) of 

this section was sent to nonrespondents; 

(iii) If the survey is submitted under 

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

the survey must be administered by a 

bona fide third party. Any H–2B 

employer or H–2B employer’s agent, 

representative, employee, or attorney 

are not bona fide third parties; 

(iv) The survey must be conducted 

across industries that employ workers 

performing the same or substantially 

similar job duties; and 

(v) The wage reported in the survey 

must include all types of pay. 

(5) 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 PWD 

request is submitted to the NPWC. 

* * * * * 

Jose ́ Javier Rodrı ́guez, 

Assistant Secretary for Employment and 

Training, Labor. 

[FR Doc. 2024–26481 Filed 11–15–24; 8:45 am] 

BILLING CODE 4510–FP–P 


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