DOL Proposes To Delay Effective Date of H-2B Wage Methodology Final Rule Indefinitely

The Department of Labor (DOL) proposes to delay indefinitely the effective date of the “Wage Methodology for the Temporary Non-Agricultural Employment H-2B Program” final rule (2011 wage rule) “to comply with recurrent legislation that prohibits the [DOL] from using any funds to implement it, and to permit time for consideration of public comments sought in conjunction with an interim final rule published April 24, 2013, 78 FR 24047.”

The 2011 wage rule revised the methodology by which the DOL calculates the prevailing wage to be paid to H-2B workers and U.S. workers recruited in connection with temporary labor certifications to employ H-2B nonimmigrant workers. The 2011 wage rule was originally scheduled to become effective on January 1, 2012, and the effective date has been extended a number of times, most recently to October 1, 2013. The Department is now proposing to delay the effective date of the 2011 wage rule “until such time as Congress no longer prohibits the [DOL] from implementing” it.

DOL explained that, among other things, the appropriations bill enacted in November 2011 prevented funding but did not prohibit the 2011 wage rule from going into effect. The DOL explained that the 2011 wage rule would supersede and nullify the prevailing wage provisions at 20 CFSR 655.10(b) of the DOL’s existing H-2B regulations. Accordingly, in light of the November 2011 appropriations bill, the DOL decided to delay the effective date of the 2011 wage rule. If the wage rule had taken effect, the DOL explained, “[s]uch an occurrence would have rendered the H-2B program inoperable because the issuance of a prevailing wage determination is a condition precedent to approving an employer’s request for an H-2B labor certification.”

Subsequent appropriations legislation contained the same restriction prohibiting the DOL’s use of appropriated funds to implement, administer, or enforce the 2011 wage rule and, the DOL said, necessitated subsequent extensions of the effective date of that rule. The DOL therefore now proposes to delay the effective date indefinitely until such time as the rule can be implemented with appropriated funds.

Additionally, the DOL and the Department of Homeland Security (DHS) recently promulgated an interim final rule, requesting comments, to establish a new wage methodology in response to CATA v. Solis, decided in 2013. The interim final rule requires prevailing wage determinations issued using the Occupational Employment Statistics (OES) survey to be based on the mean wage for an occupation in the area of intended employment, without tiers or skill levels. The comment period closed on June 10, 2013, and the DOL and DHS are reviewing the comments and determining whether further revisions to 20 CFSR 655.10(b) are warranted.

DOL explained that the confluence of the recent Congressional prohibition of implementation of the 2011 wage rule and the DOL’s current review and consideration of comments made in response to the proposed new wage methodology require the indefinite delay of the effective date of the 2011 wage rule. Even if Congress lifts the prohibition of implementation of the 2011 wage rule, the DOL said it would need time to assess the current regulatory framework; consider any changed circumstances, novel concerns, or new information received; and minimize disruptions.

The DOL invites comment until August 9, 2013, on the proposed indefinite delay of the effective date of the 2011 wage rule. If Congress should no longer prohibit implementation, the DOL would publish a notice in the Federal Register within 45 days on the status of 20 CFR 655.10 and the effective date of the 2011 wage rule.