U.S. Department of Labor Board of Alien Labor Certification Appeals

800 K Street, NW, Suite 400-N

Washington, DC 20001-8002

(202) 693-7300

(202) 693-7365 (FAX)

Issue Date: 03 December 2013

BALCA Case No.: 2013-PWD-00002

ETA Case Nos.: H-400-13042-222266

H-400-13017-673356

H-400-13042-952115

In the Matter of: 

ISLAND HOLDINGS LLC,

Employer. 

Appearances: Monte B. Lake, Esquire

Wendel V. Hall, Esquire

CJ Lake, LLC

Washington, DC

For Island Holdings LLC

Gary M. Buff, Associate Solicitor

Harry L. Sheinfeld, Counsel for Litigation

Vincent C. Costantino, Senior Trial Attorney

Office of the Solicitor

Division of Employment and Training Legal Services

Washington, DC

For the Certifying Officer

Ann Margaret Pointer, Esquire

Fisher & Phillips LLP

Atlanta, GA

For Amicus, Forest Resources Association, et al.

Arthur N. Read, Esquire

Friends of Farmworkers, Inc.

Philadelphia, PA

For Amicus, Comité de Apoyo a Los Trabajadores Agrícolas, et al.

Before: Almanza, Colwell, Johnson, Reilly, and Rosenow

Administrative Law Judges

WILLIAM S. COLWELL

Associate Chief Administrative Law Judge
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DECISION AND ORDER

This matter arises under the nonimmigrant provisions of the Immigration and Nationality 

Act (“INA”), as amended, 8 U.S.C. § 1101(a)(15)(H)(ii)(b) (2012), and the regulations 

promulgated thereunder at 8 C.F.R. § 214.2 and 20 C.F.R. § 655, subpart A (collectively referred 

to as the “H-2B program”). The H-2B program allows U.S. seasonal employers to hire foreign 

workers on a temporary basis to perform nonagricultural services or labor if, inter alia,

“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). An employer seeking to use this program must 

apply for and obtain a temporary labor certification from the Department of Labor (“DOL” or the 

“Department”). 8 C.F.R. § 214.2(h)(6)(iii)(A) (2012).

The Employer, Island Holdings, LLC (“Island”), operates a resort in Edgartown, 

Massachusetts on a seasonal basis. Earlier this year, Island applied for and obtained temporary 

labor certifications from DOL to employ foreign workers as housekeepers, servers, and cooks for

the resort’s 2013 season. This appeal involves three “Supplemental Prevailing Wage 

Determinations” (“supplemental PWDs”) that the Department issued to Island after it approved 

and granted the temporary labor certifications. All three supplemental PWDs purport to increase 

the wage rate Island must pay the H-2B workers it hired pursuant to the temporary labor 

certifications.

Because the Department’s regulations do not require an employer to comply with a

prevailing wage determination issued after the Department has approved and granted the 

employer’s Application for Temporary Employment Certification (ETA Form 9142), we 

VACATE the supplemental PWDs and the increased wage obligations that they purport to 

impose. 

BACKGROUND

The Department’s role in the administration of the H-2B program provides the 

framework and context for the instant appeal. Accordingly, we start with a review of the 

Department’s role before detailing the factual background leading up to the instant appeals. 

A. Statutory and Regulatory Scheme

Section 101(a)(15)(H)(ii)(b) of the INA permits an alien to enter the United States on a 

temporary basis to perform temporary, nonagricultural services or labor if, inter alia, 

“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“The question of importing any alien as [an H-2B 

nonimmigrant] . . . in any specific case or specific cases shall be determined by the [Secretary of 

Homeland Security], after consultation with appropriate agencies of the Government, upon 

 

1

Foreign workers who enter the United States under this subsection are commonly referred to as “H-2B workers.” 
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petition of the importing employer.” 8 U.S.C. § 1184(c)(1).2 The Secretary of Homeland 

Security has delegated this responsibility to the Director of the United States Citizenship and 

Immigration Service (“USCIS”), an agency within the Department of Homeland Security 

(“DHS”), but has designated DOL as an agency that USCIS shall consult with to determine

whether “unemployed persons capable of performing such service or labor cannot be found in 

this country.” See 78 Fed. Reg. 24047, 24048 (Apr. 24, 2013) (citing 8 U.S.C. §§

1101(a)(15)(H)(ii)(b), 1184(c)(1)).

Pursuant to DHS regulations, an employer seeking to import H-2B workers must apply 

for and obtain a “temporary labor certification” from the Secretary of Labor before it files a

petition with USCIS. 8 C.F.R. § 214.2(h)(6)(iii)(A) (2012). A temporary labor certification 

constitutes the Secretary of Labor’s “advice to the Director [of USCIS] on whether or not United 

States workers capable of performing the temporary services or labor are available and whether 

or not the alien’s employment will adversely affect the wages and working conditions of 

similarly employed United States workers.” Once an employer obtains a favorable 

determination from the Secretary of Labor, it may petition USCIS to employ foreign workers on 

an H-2B visa for the time period and under the conditions specified in the temporary labor 

certification. 8 C.F.R. § 214.2(h)(6).

The Secretary of Labor delegated this authority between two agencies in the Department: 

the Office of Foreign Labor Certification (“OFLC”) in the Employment and Training 

Administration (“ETA”), which processes applications for temporary labor certification, and the 

Wage and Hour Division, which enforces the attestations and assurances an employer makes to 

the Department when it applies for temporary labor certification. 20 C.F.R. § 655.00 (2012).

The procedures whereby a temporary labor certification may be applied for, and granted 

or denied are set forth in title 20, part 655, subpart A of the Code of Federal Regulations. 20 

C.F.R. § 655.1 (2012). This subpart sets forth an attestation-based application process composed 

of three phases. First, an employer must obtain an individualized prevailing wage determination 

from the National Prevailing Wage Center (“NPWC”). 20 C.F.R. § 655.15(d)(1). Then, the

employer must recruit U.S. workers for the job opportunity at a wage that equals or exceeds the 

prevailing wage calculated by the NPWC. See 20 C.F.R. § 655.15(d)(2)-(4). Finally, after the 

employer completes the recruitment steps specified in the regulations, it may file an Application 

for Temporary Employment Certification (ETA Form 9142) with the OFLC. 20 C.F.R. § 

655.20(a). The Application for Temporary Employment Certification requests specific

information about the employer’s job opportunity, including, inter alia, the wage the employer 

proposes to offer for the position. By signing the application, the employer attests that it will 

abide by a list of enumerated conditions. See 20 C.F.R. § 655.22. An employer’s compliance 

with these “attestations” forms the basis of the Department’s finding that the employment of 

foreign worker(s) will not adversely affect the wages and working conditions of similarly 

employed U.S. workers. After the employer submits its Application for Temporary Employment 

Certification, a Certifying Officer will evaluate the application and make a determination to 

 

2 The INA delegates this authority to the Attorney General; however, in the Homeland Security Act of 2002, 

Congress transferred this authority from the Attorney General to the Secretary of Homeland Security. See 6 U.S.C. 

§ 236(b).
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grant, partially grant, or deny the temporary labor certification requested by the employer. 20 

C.F.R. § 655.23(b).

B. Calculation of the Prevailing Wage

In 2005, the Department issued guidance applying the 4-tier skills based methodology it 

used to calculate prevailing wage rates in the permanent labor certification and H-1B guest 

worker programs to the H-2B program. See generally 78 Fed. Reg. 24047, 24051-24056 (Apr. 

24 2013).

3

 The Department adopted this methodology when it promulgated regulations to 

govern the H-2B program in 2008. See 73 Fed. Reg. 78020 (Dec. 19, 2008) (“2008 Rule”). 

Specifically, section 655.10(b)(2), as promulgated in the 2008 Rule, provides that the prevailing 

wage for an H-2B job opportunity “shall be the arithmetic mean . . . of the wages of workers 

similarly employed at the skill level in the area of intended employment.” 20 C.F.R. § 

655.10(b)(2) (2009) (emphasis added).

4

If an employer does not provide a survey acceptable to 

the OFLC under 20 C.F.R. § 655.10(f), the arithmetic mean is derived from data compiled by the

Bureau of Labor Statistics (BLS) in the Occupational Employment Statistics wage survey 

(OES).

5

20 C.F.R. § 655.10(b)(2) (2008). 

In 2009, Comité de Apoyo a los Trabajadores Agricolas (CATA) and several other 

plaintiffs (collectively “CATA plaintiffs”) filed an action against DOL in the United States 

District Court for the Eastern District of Pennsylvania. Comité de Apoyo a los Trabajadores 

Agricolas (CATA) v. Solis, No. 2:09-cv-0240-LDD. The CATA plaintiffs challenged various 

aspects of the 2008 rule as improperly promulgated under the Administrative Procedure Act 

(“APA”). Id. 

On August 30, 2010, the United States District Court for the Eastern District of 

Pennsylvania issued an extensive Memorandum and Order invalidating several provisions of the 

2008 Rule, including the language “at the skill level” in 20 C.F.R. § 655.10(b)(2). CATA v. 

Solis, No. 2:09-cv-0240-LDD, 2010 WL 3431761 (E.D. Pa. Aug. 30, 2010) (“CATA I”). Among 

other things, the court found that DOL failed to articulate a satisfactory explanation to support 

the use of skill levels in determining prevailing wage rates for positions to be filled by H-2B 

 

3 The Department adopted this methodology pursuant to section 212(p)(4) of the INA, which provides: “Where the 

Secretary of Labor uses, or makes available to employers, a governmental survey to determine the prevailing wage, 

such survey shall provide at least 4 levels of wages commensurate with experience, education, and the level of 

supervision. Where an existing government survey has only 2 levels, 2 intermediate levels may be created by 

dividing by 3, the difference between the 2 levels offered, adding the quotient thus obtained to the first level and 

subtracting that quotient from the second level.” 8 U.S.C. § 1182(p)(4). In a later rulemaking proceeding, the 

Department determined that section 212(p)(4) only pertained to the H-1B skilled guest worker program and 

Permanent Labor Certification program, and did not bind the Department to offering four-tiered wage levels when it 

calculated prevailing wage rates in the H-2B program. See 75 Fed. Reg. 61578, 61580 (Oct. 5, 2010). 

4 Unless the employer’s job opportunity was covered by a collective bargaining agreement, (CBA), in which case 

the CBA would control. 20 C.F.R. § 655.10(b)(1)(2008). 

5 The 2008 Rule also permitted an employer to “use a current wage determination in the area determined under the 

Davis-Bacon Act, 40 U.S.C. 276a et seq., 29 CFR part 1, or the McNamara-O’Hara Service Contract Act, 41 U.S.C.

351 et seq.” 20 C.F.R. § 655.10(5)(2008). 
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workers. Id. In so finding, the court stressed that DOL “never explained its reasoning for using 

skill levels as part of the H-2B prevailing wage determinations” and never subjected the use of 

skill levels to notice and comment rulemaking. Id. at *19, *25. Because there was not a prior 

valid rule upon which the Department could rely to calculate the prevailing wage rate for

purposes of the H-2B program, the court did not vacate the prevailing wage provisions it found 

to be invalid; instead, it ordered the Department to promulgate a replacement rule within 180 

days. 

Following the court’s ruling in CATA I, the Department issued a Notice of Proposed Rule 

Making in the Federal Register announcing its intent to change the methodology it uses to 

calculate prevailing wages for the H-2B program. See Wage Methodology for the Temporary 

Non-Agricultural Employment H-2B Program, Proposed Rule; Request for Comments, 75 Fed. 

Reg. 61578 (Oct. 5, 2010). The Department issued a Final Rule codifying these changes to the 

prevailing wage methodology on January 19, 2011. See Wage Methodology for the Temporary 

Non-Agricultural Employment H-2B Program, Final Rule, 76 Fed. Reg. 3452 (Jan. 19, 2011) 

(“2011 Wage Rule”). The 2011 Wage Rule never went into effect, however, due to a federal 

court order and several appropriations riders that ban the Department from implementing or 

enforcing it.

6

 Consequently, the Department continued to rely on the prevailing wage provisions

of the 2008 Rule. 

Believing this reliance to be in violation of CATA I, the CATA plaintiffs filed a motion 

asking the court to enjoin DOL from issuing prevailing wage determinations based on the fourtier skills-based methodology. See Memorandum of Law in Support of Plaintiffs’ Motion for a 

Temporary Restraining Order and Preliminary and Permanent Injunctive Relief, CATA v. Solis, 

No. 2:09-cv-0240-LDD (E.D. Pa.), Dkt. 152. The United States District Court for the Eastern 

District of Pennsylvania agreed, and on March 21, 2013, it issued an order vacating the words “at 

the skill level” in section 655.10(b)(2). CATA v. Solis, No. 2:09-cv-0240-LDD, 2013 WL 

1163426, *13 (E.D. Pa. Mar. 21, 2013) (CATA II). The court noted that DOL was only 

authorized to issue a temporary labor certification if the employment of foreign workers will not 

have an adverse effect on the wages or working conditions of similarly employed U.S. workers. 

Id. at *8. Because DOL had found, in the preamble to the 2011 Wage Rule, that prevailing wage 

determinations based on four-level OES wage rates do result in an adverse effect on similarly 

employed U.S. workers, the court held that labor certifications based on these prevailing wage 

determinations “exceed the bounds of DOL’s delegated authority.” Id. at *10. The court 

explained that vacating the four-level wage component of the 2008 rule “will only disrupt the H–

2B program to the extent that the DHS and DOL use the program to issue H–2B visas that they 

are expressly prohibited from granting.” Id. at *12. Consequently, the court vacated and 

remanded section 655.10(b)(2), and gave DOL 30 days to come into compliance. Id. at *13.

 

6 The Department delayed the effective date of the 2011 Wage Rule after the United States District Court for the 

Northern District of Florida issued a temporary restraining order, and again after Congress enacted legislation 

prohibiting the Department from using appropriated funds to implement, administer, or enforce the 2011 Wage 

Rule. See Bayou Lawn & Landscape Service v. Solis, No. 11-cv-0445 (N.D. Fla. Sept. 26, 2011); Public Law No. 

112-55, 125 Stat. 552, Div. B, Title V, sec. 546 (Nov. 18, 2011). Subsequent appropriations riders continued this 

prohibition, and on August 30, 2013, the Department issued a Final Rule indefinitely delaying the effective date of 

the 2011 Wage Rule. See 78 Fed. Reg. 53643 (Aug. 30, 2013).
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On April 24, 2013, DOL issued an Interim Final Rule (IFR), effective immediately, 

which amended the prevailing wage methodology for the H-2B program. The only amendment 

the IFR made to the existing regulations, as promulgated in the 2008 Rule, was to delete the 

words “at the skill level” from 20 C.F.R. § 655.10(b).7

C. Procedural History

The history of Island’s temporary labor certifications for housekeepers, servers, and 

cooks is substantially similar. For purposes of brevity, we focus our discussion on Island’s 

temporary labor certifications for housekeepers. 

Island filed an Application for Prevailing Wage Determination (ETA Form 9141) for 

housekeeper positions in October 2012. AF 29.8The NPWC issued a prevailing wage 

determination shortly thereafter, in which it assigned a prevailing wage of $9.91 per hour, based 

the level 1 wage in the OES database for “Maids and Housekeeping Cleaners” in Edgartown, 

Massachusetts. AF 1385. The determination listed a validity period that began on October 20, 

2012 and ended on January 31, 2013. AF 1385. Island completed its pre-filing recruitment and 

filed an Application for Temporary Employment Certification (ETA Form 9142) within this 

validity period. AF 1370-1381.9The wage offer Island listed in the application, $10.50 per hour, 

exceeded the prevailing wage issued by the NPWC. AF 1374. 

On February 19, 2013, the National Certifying Officer approved the application and 

granted temporary labor certification. AF 29; AF 1370. Island relied on this temporary labor

certification to file H-2B petitions with USCIS; USCIS approved a petition for 9 H-2B workers 

in housekeeping positions on March 8, 2013, and a second petition for 9 H-2B workers in 

housekeeping positions on May 1, 2013. AF 29. 

On May 6, 2013, Island received a “Supplemental Prevailing Wage Determination” from 

the NPWC. The supplemental PWD informed Island that the prevailing wage for the

housekeeper positions had increased to $13.00 per hour. The NPWC provided the following 

explanation for this change: 

 

7 The IFR amends section 655.10 by revising paragraph (b)(2) as follows:

If the job opportunity is not covered by a CBA, the prevailing wage for labor certification 

purposes shall be the arithmetic mean, except as provided in paragraph (b)(4) of this section, of the 

wages of workers similarly employed in the area of intended employment. The wage component 

of the BLS Occupational Employment Statistics Survey (OES) shall be used to determine the 

arithmetic mean, unless the employer provides a survey acceptable to OFLC under paragraph (f) 

of this section

78 Fed. Reg. 24047, 24061 (Apr. 24, 2013). 

8

“AF” refers to the Administrative File case that the NPWC compiled for case number H-400-13017-673356.

9

Island filed its application on January 18, 2013. AF 29. 
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On April 24, 2013, the Department of Homeland Security and the Department of 

Labor (DOL) jointly published an Interim Final Rule that revised the 

methodology by which the DOL calculates prevailing wages under the H-2B 

program. Under this Interim Final Rule the prevailing wage issued by DOL under 

20 CFR § 655.10(b)(2) is the arithmetic mean for the occupation in the area of 

intended employment as established by the Bureau of Labor Statistics’ 

Occupational Employment Statistics survey. The wage(s) listed below are for the 

location(s) of work indicated on the ETA Form 9142. In accordance with the 

employer’s declaration in Appendix B.1, the employer is responsible for 

compliance with this supplemental prevailing wage determination (PWD) 

upon receipt of notification by DOL.

. . . 

Should the employer desire to seek a redetermination of this supplemental 

prevailing wage determination, the employer must submit a redetermination 

request within 30 days of the date of this letter in accordance with DOL’s 

regulations at 20 CFR § 655.10(g). . . . Should the redetermination not result in a 

change in the prevailing wage determination, the employer will be expected to 

pay at least the wage(s) identified in this letter from the date of receipt of this 

notification. 

AF 1359 (emphasis in original). That same day, Island received supplemental PWDs for two 

other H-2B positions (servers and cooks), both of which the Department had approved and

granted a temporary labor certification for on March 1, 2013. AF 29. 

On May 13, 2013, Island asked the National Certifying Officer to “cancel (or redetermine)” the supplemental PWDs, which, it argued, imposed a wage obligation that was not 

authorized by the Department’s regulations. AF 1356. Before it received a response to this 

request, Island filed an “Emergency Motion” with BALCA requesting administrative review 

pursuant to 20 C.F.R. § 655.11(e)(2). We initially docketed the appeal, but remanded it to the 

NPWC shortly thereafter with instructions to complete the review process set forth at 20 C.F.R. 

§§ 655.10 and 655.11. The parties have now completed this review process and Island has again 

requested administrative review pursuant to 20 C.F.R. § 655.11(e)(2).

JURISDICTION AND STANDARD OF REVIEW

This Board is authorized to hear and decide appeals of prevailing wage determinations

issued by the NPWC and affirmed by a Certifying Officer. See 20 C.F.R. § 655.11. We will

affirm the determination if it is consistent with the governing regulations and if it represents a 

reasonable exercise of the discretion afforded to the NPWC under the regulations. See University 

of Wisconsin-Oshkosh, 2011-PWD-3 (Mar. 27, 2012); Emory University, 2011-PWD-1, slip op. 

at 6-7 (Feb. 27, 2012); see also RP Consultants, Inc. d/b/a Net Matrix Solutions, 2009-JSW-1 

(June 30, 2010).

Counsel for the Certifying Officer argues this Board does not have the authority to 

question the NPWC’s authority to issue post-certification prevailing wage determinations. In 

making this argument, Counsel relies on this Board’s holding in Dearborn Public Schools, that it 
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“lacks both the inherent authority to rule on the validity of a regulation and the express authority 

to invalidate the regulation as written.” Certifying Officer’s Brief on Remand Concerning the 

Issuance of Island Holdings Supplemental Prevailing Wage Determinations (“CO’s Brief”), at 5-

6 (citing Dearborn Public Schools, 1991-INA-222, slip op. at 4 (Dec. 7, 1993) (en banc) and 

Karl Storz Endoscopy-America, 2011-PER-40 (Dec. 1, 2011) (en banc)). After citing Dearborn 

Public Schools, Counsel asserts, without additional explanation, that the “Board may not 

determine whether the agency correctly interpreted and implemented [the court’s] order in 

CATA . . . .” Id.

10

 Had the Department codified its interpretation of the court’s order in the 

Code of Federal Regulations, we would agree. But Counsel for the Certifying Officer did not 

identify which regulation it purports this Board would be invalidating if it were to determine “the 

agency” did not correctly interpret or implement the court’s order in CATA II. Our review is 

limited to whether the regulations, as codified at Title 20, Part 655, Subpart A of the Code of 

Federal Regulations, permit the NPWC to issue the supplemental PWDs at issue in this appeal. 

DISCUSSION

As explained above, the INA does not explicitly require an employer to pay a prevailing 

wage for the labor or services to be performed by H-2B workers. Rather, it permits a foreign 

national to enter the United States on a temporary basis to perform temporary, nonagricultural 

labor or services “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). Accordingly, we look to the INA’s 

implementing regulations to determine the legal obligations an employer assumes when it 

employs a foreign worker under the H-2B program. Island argues the Department’s regulations 

do not authorize the NPWC to increase the prevailing wage rate an employer must offer and pay

to H-2B workers after the Department has approved and certified the employer’s Application for 

Temporary Employment Certification. We agree.11

The temporary labor certification process set forth at Title 20, Part 655, Subpart A of the 

Code of Federal Regulations is premised on the Department’s determination that a factual 

finding as to whether U.S. workers are available to perform a particular a job opportunity cannot 

be made without first establishing the minimum level of wages, terms, benefits, and conditions 

for the job opportunity, below which similarly employed U.S. workers would be adversely 

affected, and comparing this minimum to the wages, terms, benefits, and conditions an employer 

proposes to offer foreign workers. See 20 C.F.R. § 655.0(2). The Department believes this 

inquiry is necessary because “U.S. workers cannot be expected to accept employment under 

conditions below the established minimum levels.” Id. “Once a determination of no adverse 

effect has been made, the availability of U.S. workers can be tested only if U.S. workers are 

 

10 Counsel for the CO additionally argues that this Board cannot review whether the IFR was validly promulgated. 

We need not address this argument, since Island has conceded that this Board does not have the authority to review 

whether the IFR was validly promulgated. Island's Memorandum In Support of Reversal of Post-Certification 

Prevailing Wage Determinations, at 14. Accordingly, for purposes of this appeal, we assume that the IFR was 

validly promulgated. 

11 Because we agree, we need not reach Island’s alternative argument that the supplemental PWDs were calculated 

incorrectly. 
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actively recruited through the offer of wages, terms, benefits, and conditions at least at the 

minimum level, or the level offered to the aliens, whichever is higher.” Id. 

It is thus the employer’s inability to recruit U.S. workers “through the offer of wages, 

terms, benefits, and conditions at least at the minimum level, or the level offered to the aliens, 

whichever is higher” that enables the Department to certify that “unemployed persons capable of 

performing such service or labor cannot be found in this country.”12 Consequently, an employer 

who seeks temporary labor certification must be able to determine “the minimum level of wages, 

terms, benefits, and conditions, below which similarly employed U.S. workers would be 

adversely affected,” before it recruits U.S. workers for a job opportunity. 

The minimum wage, below which similarly employed U.S. workers would be adversely 

affected, is determined by the NPWC in accordance with the procedures established in 20 C.F.R. 

§ 655.10. The IFR revised the methodology by which the Department calculates this wage. In 

this appeal, we must determine what effect this revision has on an Application for Temporary 

Employment Certification that the Department approved and certified before the IFR went into 

effect. 

Section 655.10, which is entitled “Determination of prevailing wage for temporary labor 

certification purposes” establishes the procedures by which an employer seeking H-2B 

temporary labor certification must apply for and obtain a prevailing wage determination. First, 

the employer “must request a prevailing wage determination from the [NPWC] in accordance 

with the procedures established by [section 655.10].” 20 C.F.R. § 655.10(a)(2012). Within 30 

days of this request, “the [NPWC] will enter its wage determination on the form it uses for these 

purposes, indicate the source, and return the form with its endorsement to the employer.” 20 

C.F.R. § 655.10(b)(6). The determination will specify a validity period, “which in no event may 

be more than 1 year or less than 3 months from the determination date.” 20 C.F.R. § 655.10(d). 

The validity period on the prevailing wage determination dictates the time period in 

which the employer must begin its recruitment or file its application; it does not purport to affect 

the time period in which the employer must offer and pay the wage. See 20 C.F.R. §

655.10(a)(2) (“The employer must obtain a prevailing wage determination that is valid either on 

the date recruitment begins or the date of filing a complete Application for Temporary 

Employment Certification with the Department”); 20 C.F.R. § 655.10(d) (“For employment that 

is less than one year in duration, the prevailing wage determination shall apply and shall be paid 

the prevailing wage by the employer, at a minimum, for the duration of the employment.”); see 

also Goose Downs Farms, 2010-TLN-64 (July 7, 2010) (interpreting 20 C.F.R. § 655.10(a)(2)). 

Section 655.10(b)(6) clarifies that an employer “must offer” the wage in this prevailing 

wage determination (or higher) “to both its H-2B workers and any similarly employed U.S. 

 

12 The Department explained this premise in the Notice of Proposed Rule Making it issued prior to promulgating the 

2008 Rule. See 73 Fed. Reg. 29942, 29946 (May 22, 2008) (“In order for the Secretary to be able to certify that 

U.S. workers would not be adversely affected by the employment of H–2B workers, an adequate test of the labor 

market must be conducted. Such a test must include the employer offering and paying a wage that is equal to or 

higher than the available position’s prevailing wage, where the terms, duties and conditions of employment are 

normal and promote the effective recruitment and consideration of U.S. workers.”). 
- 10 -

worker hired in response to the recruitment required as part of the application.” 20 C.F.R. § 

655.10(b)(6). Section 655.10(d) further specifies that “[f]or employment that is less than one 

year in duration, the prevailing wage determination shall apply and shall be paid the prevailing 

wage by the employer, at a minimum, for the duration of the employment.” Although the 

meaning of this provision is not entirely clear, the Department explained in the preamble to the 

2008 Rule that it revised this provision “to clarify that where the duration of a job opportunity is 

less than one year or less [sic], the prevailing wage determination will be valid for the duration of 

the job opportunity.” 73 Fed. Reg. 78020, 78029 (Dec. 19, 2008).13

Section 655.10 does not provide a process by which the NPWC may apprise employers 

of a change in the prevailing wage rate post-certification. In fact, our review of the regulations 

reveals that there is only one situation in which the Department would ever issue a prevailing 

wage for a position it has already certified: when the employer’s one-time temporary need lasts 

12 months or longer. See 8 C.F.R. § 214.2(h)(6)(iv)(B). But the Department may not approve 

an Application for Temporary Employment Certification for more than a 12 month period. See 8 

C.F.R. § 214.2(h)(6)(iv)(B) (“The Secretary of Labor may issue a temporary labor certification 

for a period of up to one year.”). Consequently, if an employer wishes to employ H-2B workers 

beyond the initial 12 month period, it must go through the temporary labor certification 

application process again, i.e., apply for a new prevailing wage determination, conduct another 

round of recruitment (at the newly determined prevailing wage rate), and submit a second 

Application for Temporary Employment Certification. See 20 C.F.R. § 655.20(f). 

 

13 Island Holdings argues that section 655.10(d) gives the pre-certification prevailing wage determination final effect 

for the “duration of the employment.” The Certifying Officer disagrees, and relies on dicta in a court order that was 

issued in the CATA litigation to support his argument that this provision does not prohibit the Department from 

issuing a post-certification prevailing wage determination. AF 836 (citing CATA v. Solis, No. 2:09-cv-240, 2010 

WL 4823236 (E.D. Pa. Nov. 24, 2010)). In the order referenced by the CO, the court denied the CATA plaintiffs’ 

Motion for Additional Relief after finding it did not have the power to require the Department to condition its 

approval of a temporary labor certification on an employer’s agreement to pay a different prevailing wage rate on

the date the 2011 Rule took effect. Id. at *4-5. Although the court found it did not have the power to require DOL 

issue such a certification, it rejected DOL’s argument that section 655.10(d) prohibited the Department from issuing 

a conditional certification:

The DOL contends that this provision precludes the DOL from requiring employers to pay a 

higher wage because it mandates that an employer “shall” pay the PWD “for the duration of 

employment.” The DOL appears to argue that the provision sets both a floor and a ceiling on the 

wage to be paid “for the duration of employment.” But this construction glosses over the phrase 

“at a minimum,” which manifestly sets a floor and not a ceiling. Nothing in § 655.10(d), nor any 

related regulation, prevents the DOL from devising interim measures to reduce the impact of the 

deficient methodology. Thus an employer must pay a valid wage for the duration of employment, 

but it does not follow that an employer must continue paying that wage after it has been deemed to 

be the product of an invalid regulation.

Id. at *2. But by setting a floor for the employer, the Department sets a ceiling for itself—unless and until it 

promulgates a new rule to modify the regulation. This is because the Department must follow the procedural 

requirements mandated in the APA. New rules that work substantive changes or major legal additions to existing 

rules or regulations are subject to the APA's notice and comment procedures as legislative rules. See, e.g., U.S. 

Telecom. Ass'n v. FCC, 400 F.3d 29, 34–35 (D.C. Cir. 2005). If an agency adopts a new position inconsistent with 

an existing regulation, or effects a substantive change in the regulation, notice and comment are required. Id. at 35.
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The Certifying Officer does not cite, nor can we identify, any regulatory authority that 

would require an H-2B employer to comply with a prevailing wage determination that the 

NPWC sua sponte issues after the Department has approved an Application for Temporary 

Employment Certification. Indeed, it is not clear what “compliance” with a post-certification 

prevailing wage determination would entail. Section 655.22(e) requires an employer to attest 

that “the offered wage equals or exceeds the highest of the prevailing wage, the applicable 

Federal minimum wage, the State minimum wage, and local minimum wage” and that it “will 

pay the offered wage during the entire period of the approved H-2B labor certification.” 20 

C.F.R. § 655.22(e) (2012). Because an employer cannot offer U.S. workers a wage that equals 

or exceeds a prevailing wage that has yet to be determined, we assume the “prevailing wage” in 

section 655.22(e) refers to the prevailing wage in the pre-certification prevailing wage 

determination. This interpretation is bolstered by the fact that an employer who pays its H-2B 

workers a wage that is greater than the wage it offered to U.S. workers runs the risk of violating

another regulatory provision, section 655.22(a), which requires an employer to attest that it “is 

offering terms and working conditions [to U.S. workers] . . . not less favorable than those 

offered to the H-2B worker(s) . . .” 20 C.F.R. § 655.22(a). If the Department intended to adjust 

the prevailing wage rate during the period of certified employment, it should have specifically 

stated so in the regulations, as it did in the regulations governing temporary labor certifications 

issued under the H-2A agricultural guest worker program. See 20 C.F.R. § 655.120(b) 

(informing employers that if the prevailing wage is adjusted during the period of certified H-2A 

employment, they “must pay that higher prevailing wage . . . upon notice to the employer by the 

Department.”). 

Despite the lack of regulatory text requiring an employer to “comply” with a postcertification prevailing wage determination, the Certifying Officer affirmed three supplemental 

PWDs in which the NPWC ordered Island to pay its H-2B workers a wage rate that is higher 

than the wage offer in the Application for Temporary Employment Certification approved and 

certified by the Department. The Certifying Officer relies on four sources for the NPWC’s

authority to do so: (1) the IFR; (2) an attestation in appendix B.1. of the Application for 

Temporary Labor Certification; (3) the order issued by the CATA court on March 21, 2013; and 

(4) the Department’s “inherent” authority. None is availing. 

First, the Certifying Officer asserts that the supplemental PWDs were “issued pursuant to 

the IFR.” But he fails to cite a single regulatory provision that requires Island to “comply” with 

a prevailing wage calculated after the Department had approved and certified its Application for 

Temporary Employment Certification.

14

 Instead, the Certifying Officer relies on the following 

discussion in the preamble to the IFR: 

[U]nder the CATA II court’s order, and DOL’s own factual findings, the U.S. 

workers and H–2B workers currently employed under approved certifications, 

based on the invalid wage rates under the 2008 rule, are being underpaid in 

violation of the INA. CATA II, 2013 WL 1163426, *11–12; 76 FR 3463. To come 

into compliance with the court’s order and to ensure that DHS and DOL fulfill the 

 

14 Indeed, in his brief before this Board, the Certifying Officer acknowledges that “. . . there [is] no specific 

provision in the regulations describing the issuance of SPWDs. . .” CO’s Brief at 12. 
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statutory mandate to protect the domestic labor market, DHS and DOL must 

immediately set new and legally valid prevailing wage rate standards to allow for 

an immediate adjustment of the wage rates for these currently employed workers. 

Further delay in setting a legally valid prevailing wage regime will cause 

continued harm to U.S. workers, foreign workers, and the domestic labor market.

CO’s Brief at 12, 14-15 (citing 78 Fed. Reg. 24047, 24056 (Apr. 24, 2013)). This discussion 

indicates that the Department intended to issue post-certification prevailing wage determinations

when it promulgated the IFR. But the regulatory text codified in the IFR does not reflect this 

intent. As the United States Court of Appeals for the District of Columbia Circuit explained:

The preamble to a rule is not more binding than a preamble to a statute. “A 

preamble no doubt contributes to a general understanding of a statute, but it is not 

an operative part of the statute and it does not enlarge or confer powers on 

administrative agencies or officers.” Ass'n of American R.Rs. v. Costle, 562 F.2d

1310, 1316 (D.C.Cir.1977) (citing Yazoo Railroad Co. v. Thomas, 132 U.S. 174, 

188, 10 S.Ct. 68, 73, 33 L.Ed. 302 (1889)). “Where the enacting or operative parts 

of a statute are unambiguous, the meaning of the statute cannot be controlled by 

language in the preamble.” Id.

National Wildlife Federation v. E.P.A., 286 F.3d 554, 569-70 (D.C. Cir. 2002). The regulatory 

text codified in the IFR does not provide the NPWC with the authority to issue a postcertification prevailing wage determination. Nor does it require an employer to comply with such 

a post-certification prevailing wage determination. The Department’s commentary in the 

preamble to the IFR assumes that the Department has the authority to change a wage rate midseason without citing any specific statutory or regulatory provision authorizing it to do so. These 

statements cannot justify the imposition of a legal obligation that is not otherwise required by 

law, and which is inconsistent with the Department’s existing pre-certification regulatory regime. 

The Certifying Officer thus erred in relying on the language in the preamble to affirm the 

supplemental PWDs.15

Second, the Certifying Officer argues that Island agreed to pay a wage that equals or 

exceeds the prevailing wage that “is or will” be issued by the Department when it signed the

Application for Temporary Employment Certification. In making this argument, the Certifying 

Officer relies on Paragraph 5 of Appendix B.1 to the Application for Temporary Employment 

Certification. Paragraph 5 is one of 14 paragraphs in the “Employer Declaration” section of 

Appendix B.1., all of which are preceded by the following statement: “By virtue of my signature 

below, I HEREBY CERTIFY the following conditions of employment.” Paragraph 5 states: 

“The offered wage equals or exceeds the highest of the most recent prevailing wage that is or 

will be issued by the Department to the employer for the time period the work is performed, or 

 

15 This is not the first instance in which we have refused to allow a Certifying Officer to rely on language in the 

preamble to a final rule that is not supported by the text of the final rule it purports to describe. See, e.g., S. Chae 

Holding, Inc. 2009-PER-135, slip op. at 5 (Mar. 31, 2009) (“If the drafters of the PERM regulations wanted to 

eliminate something so fundamental as an ALJ’s remand authority, they needed to do so in the body of the 

regulations themselves rather than merely in the preamble to the regulations.”). 
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the applicable Federal State, or local minimum wage, and the employer will pay the offered 

wage.” AF 1378. This paragraph differs from the attestation required under section 655.22(e), 

i.e., that “the offered wage equals or exceeds the highest of the prevailing wage, the applicable 

Federal minimum wage, the State minimum wage, and local minimum wage and the employer 

will pay the offered wage during the entire period of the approved H-2B labor certification.” 

The Department changed the language in Paragraph 5 from the language at section 655.22(e) in 

an informal notice in the Federal Register. 76 Fed. Reg. 21036 (Apr. 14, 2011) (modifying the 

attestation at paragraph 5 in an attempt to require H-2B employers to agree to pay a prevailing 

wage that “is or will be” issued by the Department). The Department made this change in 

connection with its implementation of the 2011 Wage Rule (which, as discussed above, has been 

indefinitely delayed). 

The Certifying Officer’s reliance on Paragraph 5 is misplaced. The Department may not 

require an employer to attest to a condition that is not required by the regulations. This is 

because the Department cannot impose additional legal obligations on a regulated party without 

following the procedures mandated by the APA. Among other things, the APA requires an 

agency to provide notice and comment for those rules intended to bind the public with the force 

of law. See, e.g., Gen Elec. Co. v. EPA, 290 F.3d 377, 382-83 (D.C. Cir. 2002). The Department

implicitly acknowledged this fact in April 2012, when it sought emergency approval to change 

Appendix B.1. after a federal court enjoined it from implementing or enforcing the H-2B it 

promulgated in 2012. Specifically, the Department explained:

DOL is asking for this emergency revision to use the former l 205-0466 

instruments. The reason the forms must revert back to those in effect prior to the 

2012 H-2B Final Rule is because the attestations that an employer using the H-2B 

program must make, which are listed in Appendix B.l, have changed substantially 

and the Department cannot require employers to make attestations that are 

not required by the current regulations, which will remain in effect if the rule 

is enjoined. 

See Island Exhibit 1, Supporting Statement For Request For OMB Approval Under The 

Paperwork Reduction Act of 1995, dated April 26, 2012 (emphasis added). In making this 

request, the Department apparently overlooked the fact that Appendix B.1. included an 

attestation that was not otherwise required by the regulations.

By changing the attestation in Paragraph 5, without changing the attestation required by 

section 655.22(e), the Department added a condition to the labor certification that it has no legal 

basis to enforce. The Department’s regulations only authorize the Administrator of the Wage 

and Hour Division (“Administrator”) to find a violation if, inter alia, the Employer “substantially 

failed to meet any of the conditions of the labor certification application attested to, as listed in § 

655.22, or any of the conditions of the DHS Form I–129, Petition for a Nonimmigrant Worker 

for an H–2B worker in 8 CFR 214.2(h).” 20 C.F.R. § 655.60 (emphasis added). And the 

Administrator may only assess civil money penalties “upon determining that an employer has 

willfully failed to pay wages, in violation of the attestation required by § 655.22(e) . . .” 20 
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C.F.R. § 655.65. It is pointless to order Island to comply with a condition that the Department 

has no authority to enforce.16

Third, the Certifying Officer claims that the court’s order in CATA v. Solis “implicitly” 

authorized the Department to issue supplemental PWDs because “[v]acatur of the 2008 wage 

rule required the reissuance of new and valid wage rates under the H-2B program.” CO’s Brief 

at 11. We disagree. The court’s order vacated the 2008 Rule, as codified at 20 C.F.R. § 

655.10(b)(2). CATA II, 2013 WL 1163426, *16. It did not invalidate the Department’s 

regulations at section 655.10(d) or section 655.22(e), which collectively govern the temporal 

scope of the prevailing wage rate an employer must agree to offer and pay during the period of 

the approved H-2B labor certification. Nor did it order the Department to modify the terms of 

temporary labor certifications that the Department had already certified to USCIS. It is not clear 

that the court would even consider doing so, since, as we explain above, the Department has 

never explained the benefit of requiring an employer to offer a higher wage to its H-2B workers 

than the wage the employer offered to U.S. workers when it conducted the pre-filing recruitment. 

We thus reject the Certifying Officer’s “court authorization” argument as meritless. 

Finally, the Certifying Officer contends, without the support of legal argument, that the 

Department has the “inherent authority” to issue supplemental PWDs. “Otherwise,” the 

Certifying Officer argues, the Employer “would be utilizing an illegal wage and both the DOL 

and DHS would be allowing aliens to be paid an inappropriate wage in violation of the INA.” 

CO’s Brief at 12. This argument assumes what the Certifying Officer is trying to prove—that 

the payment of the supplemental prevailing wage rate is somehow required by law. The 

Department’s regulations do not require an employer to comply with such a determination, and 

the Department does not have the inherent authority to correct mistakes in a regulation without 

undergoing the procedures mandated by the APA. See Utility Solid Waste Activities Group v. 

EPA, 236 F.3d 749 (D.C. Cir. 2001). Because the Certifying Officer does not cite any case law 

or standard to support his contention that the Department possesses the inherent authority he 

suggests, we decline to further address this argument. 

In sum, the Certifying Officer assumes, without citing any specific statutory or regulatory 

authority, that the Department may require an employer to agree to an undisclosed prevailing 

wage rate at an unknown future date as a condition for certification. This position is contrary to 

the current regulations and it is inconsistent with DOL’s long-standing practice in administering 

the H-2B labor certification program. 

 

16 We further note that a plain reading of the condition to which an employer must certify in Paragraph 5 places an 

impossible burden on the employer. Unless an employer is able to predict the future, it is difficult to see how an

employer could possibly certify that the wage it offers for the job opportunity equals or exceeds a prevailing wage 

that will be issued by the Department. 
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CONCLUSION

The Department’s H-2B regulations do not require an employer to increase the wage it 

offers and pays its H-2B workers after the Department has approved and certified its Application 

for Temporary Employment Certification. It was an abuse of discretion for the Certifying 

Officer to affirm the supplemental PWDs, which impose a legal obligation that is not otherwise 

required by law. We therefore REMAND the supplemental PWDs to the Certifying Officer with 

instructions to vacate the increased wage obligations that they purport to impose. 

For the Board:

WILLIAM S. COLWELL

Associate Chief Administrative Law Judge