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  • News: DOL Publishes FAQs on 2015 H-2B Wage Final Rule

    Foreign Labor Certification
    Helping U.S. employers fill jobs while protecting U.S. and foreign workers

    OFLC Frequently Asked Questions and Answers

    Important Notice: The information on this page pertains to the 2008 H-2B Final Rule.

    On April 29, 2015, the Departments of Labor and Homeland Security jointly published new regulations governing the H-2B Temporary Non-agricultural Labor Certification Program. The new regulations are effective immediately.

    § The Department of Labor's news release discussing the two regulations may be accessed here.

    § The 2015 Temporary Non-Agricultural Employment of H-2B Aliens in the United States, Interim Final Rule is available here.

    § The 2015 Wage Methodology for the Temporary Non-Agricultural employment H-2B Program, Final Rule is available here.

    H-2B 2015 WAGE FINAL RULE

    General

    1. I am an employer who has been participating in the H-2B program for a number of years. I understand the Department published a new wage regulation in 2015 for the H-2B program. What is it and does it apply to me?

    On April 29, 2015, the Department published the Wage Methodology for the Temporary Non- Agricultural Employment H-2B Program, Final Rule (H-2B Wage Final Rule), which became effective on the same date. 80 FR 24146 (Apr. 29, 2015). The H-2B Wage Final rule implemented the methodology the Department of Labor now uses to calculate the prevailing wages for H-2B job opportunities. An employer must offer and pay to H-2B workers and U.S. workers recruited in connection with an H-2B Application for Temporary Employment Certification, at least the prevailing wage obtained from the National Prevailing Wage Center or the Federal, State, or local minimum wage, whichever is highest. 20 CFR 655.10(a).

    The H-2B Wage Final Rule:

      • Uses the Bureau of Labor Statistics' Occupational Employment Statistics (OES) survey mean as the default wage source in the H-2B program. Absent a collective bargaining agreement (CBA), applicable professional sports league’s rules and regulations, or an acceptable employer-provided survey, the NPWC will issue the prevailing wage on Form ETA-9141 using the OES mean;
      • Eliminates the use of a tiered/leveled wage in any H-2B prevailing wage determination, including employer-provided surveys;
      • Does not allow the use of the Service Contract Act (SCA) and Davis-Bacon Act (DBA) wage databases as sources for the H-2B prevailing wage;
      • Allows for consideration of employer-provided surveys under certain circumstances (e.g., no applicable CBA and no professional sports league rules or regulations apply; conducted by a bona fide third party; and satisfies methodological requirements); and
      • Lists specific methodological criteria an employer-provided survey must satisfy and implements a corresponding form: Form ETA-9165, Employer-Provided Survey Attestations to Accompany H-2B Prevailing Wage Determination Request Based on a Non-OES Survey.

    September 01, 2016

    1. How did the 2016 DOL Appropriations Act affect the prevailing wage requirements under the 2015 H-2B Wage Final Rule?

    On December 18, 2015, Congress enacted the 2016 Department of Labor Appropriations Act, (Division H, Title I of Public Law 114-113) (2016 DOL Appropriations Act), which included mandates related to H-2B prevailing wage determinations. Under these mandates:

      • The prevailing wage in the H-2B program is the highest of
        • the actual wage the employer pays to other employees with similar experience and qualifications for the position in the same location, or
        • the prevailing wage as determined by the Department for the occupation in the geographic area where the job is located, based on the best information available at the time of filing.
      • Unless there exists an applicable collective bargaining wage rate, an employer may submit an employer-provided survey that uses a statistically supported methodology and data for NPWC’s consideration even where OES wage data is available for the occupation in the specific geographic location of the jobsite.

    Note: Additional guidance about the 2016 DOL Appropriations Act’s modification of the 2015 H-2B Wage Final Rule is available here and related FAQs are available here.

    September 01, 2016

    1. Why isn't the Department continuing to use four-tiered OES wage rates when issuing prevailing wage determinations in the H-2B program?

    In 2013, a court permanently enjoined the Department from using the four-tiered approach for determining prevailing wages in the H-2B program and vacated the then existing H-2B regulatory provision that required the issuance of prevailing wages based on four artificial skill levels. Comite de Apoyo a los Trabajadores Agricolas (CATA) v. Solis, 933 F. Supp. 2d 700, 711-16 (E.D. Pa. 2013) (CATA II). The CATA II court, which issued the Order, found that the 2008 regulation then being implemented to set the prevailing wage based on the four-tiered OES wage rates were wholly irrelevant to unskilled H-2B work and violated the Immigration and Nationality Act by allowing employers to pay substandard wages that harm the domestic labor market. CATA II, 993 F. Supp. 2d at 713.

    September 01, 2016

    1. What is the Occupational Employment Statistics (OES) mean wage and when is it used to issue H-2B prevailing wage determinations?
      • What is the OES mean wage?

        Under the 2015 H-2B Wage Final Rule, the prevailing wage issued by DOL for the H-2B program using the Bureau of Labor Statistics OES survey is the arithmetic mean (i.e., the average) for the occupation in the area of intended employment. It is important to note that the prevailing wage for the H-2B program is not the mean of the particular wage level, as it is in other programs, but is the overall mean of all wages surveyed in the occupation in the geographic area of employment. Therefore, when the National Prevailing Wage Center (NPWC) issues a prevailing wage determination for the H-2B program using the OES survey, the wage rate is the arithmetic mean of the OES wages for a given area of employment and occupation.

        The OES Web page from BLS has the most complete explanation of the methodology used to generate the arithmetic mean wage for the area. The geographic area for which wages are reported is represented by the Geo Level in Online Wage Library (OWL) and iCERT.
      • When is the OES mean wage used?

        The NPWC issues H-2B prevailing wage determinations using the OES mean wage, unless the employer requests use of an acceptable alternative wage source. Additional information about acceptable alternative wage sources is provided in the “Alternate Wage Sources” section of these FAQs.

    September 01, 2016

    Preparing/Submitting a PWD Request Form (Form ETA-9141)

    1. Rather than entering the job duties in item E.a.5 on the Form ETA-9141, Application for Prevailing Wage Determination, can I just enter "see attached" and then attach or upload a separate page listing the job duties and/or requirements?

    No. In order for information to be considered for a prevailing wage determination, an employer must begin entering the response on the Form ETA-9141 in the appropriate field, including the employer's job duties. The iCERT System allows for a total of 4,000 characters, or 15 lines, for the employer's job duties. When the employer enters more than the allotted characters or lines in item E.a.5, the iCERT System will automatically create an addendum page and insert "See Addendum" in item E.a.5. The employer's entire job duties will then appear on the iCERT Addendum page of the Form ETA-9141.

    Job duties and/or requirements that are uploaded by the employer as separate attachments will not appear on the Form ETA-9141, and the Form ETA-9141 will be determined to be insufficient. If the insufficient application was mailed to the National Prevailing Wage Center (NPWC), it will be returned to the employer. If the insufficient application was filed electronically, it will be voided in the iCERT System, and the NPWC will send an e-mail notification to the employer.

    September 01, 2016

    1. Rather than entering multiple worksite locations in item E.c.7a on the Form ETA-9141, Application for Prevailing Wage Determination, can I attach or upload a separate page listing the worksite locations?

    No. For information to be considered for a prevailing wage determination, an employer must begin entering the response on the Form ETA-9141 in the appropriate field, including multiple worksite locations. The iCERT System allows for up to 200 locations to be entered in item E.c.7a. The employer must provide enough geographic detail about each area of intended employment to cover all the known worksite locations. The National Prevailing Wage Center (NPWC) does not require employers to list every worksite's physical address in order to receive a prevailing wage determination for that worksite. For multiple worksites, the employer must enter at least the appropriate counties (or independent city(ies)/township(s)/borough(s)/parish(es) as appropriate) and the corresponding state(s) where the employee will work.

    If the employer has more than 200 worksite locations for one job description, the employer must submit a second Form ETA-9141. The employer may use the "re-use" function in the iCERT System to pre-populate the form and replace the multiple worksite locations with additional worksites.

    Additional worksite locations that are uploaded by the employer as separate attachments will not appear on the Form ETA-9141 and will not be reviewed or provided a wage determination. If the employer lists some additional worksite locations on the Form ETA-9141 but uploads a separate attachment for the remaining worksite locations, the NPWC will only provide wages for the worksite locations actually listed on the Form ETA-9141.

    If the employer does not list any of the worksite locations on the Form ETA-9141, the application will be deemed insufficient. If the insufficient application was mailed to the NPWC, it will be returned to the employer. If the insufficient application was submitted electronically, it will be voided in the iCERT System and the NPWC will send an e-mail notification to the employer.

    September 01, 2016

    PWD Processing - General

    1. Once I submit a request for a prevailing wage determination (PWD), how long will it take to receive the PWD?

    The National Prevailing Wage Center (NPWC) issues PWDs as expeditiously as possible, based on date of submission . Determination times may fluctuate based on the volume of cases as well as the material facts of each case received by the NPWC. We continue to encourage employers to submit the Form ETA-9141, Application for Prevailing Wage Determination, at least 60 days in advance of the date they plan to use it (e.g., the employer’s initial recruitment efforts for PERM or its intended application filing date for H-2B, H-1B, H-1B1, or E-3 cases).

    September 01, 2016

    1. If I have a problem or issue with a pending Form ETA-9141, Application for Prevailing Wage Determination, how do I contact the National Prevailing Wage Center (NPWC)?

    After submitting the Form ETA-9141, Application for Prevailing Wage Determination, and before the NPWC issues a determination, you may e-mail the NPWC at FLC.PWD@dol.govwith questions or concerns about the application. Please note that requests to edit the Form ETA-9141 will not be accepted.

    September 01, 2016

    1. After I submit my Form ETA-9141, Application for Prevailing Wage Determination, how do I submit additional documentation to support prevailing wage requests based on an employer provided survey or collective bargaining agreement?

    After submitting Form ETA-9141, Application for Prevailing Wage Determination, and before the National Prevailing Wage Center (NPWC) issues a determination, you may e-mail any required documents to NPWC at FLC.PWD@dol.gov. For example, if a collective bargaining agreement (CBA) covers the job opportunity described on the Form ETA-9141 and you were not able to upload a copy of the CBA when submitting the Application for Prevailing Wage Determination, or the NPWC sends a Request for Information (RFI) seeking additional documents, you may send an e-mail with the required documentation as an attachment. Be sure to include the case number assigned by iCert so that the documents can be matched to the appropriate Form ETA-9141.

    Reminder: The requestor may upload documents when initially submitting the Form ETA-9141 though the iCert system. To upload documents into the iCERT System users will select the “Browse” button and then select the file saved in their system. Once the document has been identified, select the “Upload” button. The uploaded document will then be displayed in the attachments table.

    September 01, 2016

    1. Once the National Prevailing Wage Center (NPWC) makes a prevailing wage determination (PWD), how will I receive it?

    The Department strongly prefers to transmit prevailing wage determinations electronically. Therefore, we encourage all requestors to include their e-mail address on the Form ETA-9141, Application for Prevailing Wage Determination, under item B.15. Once a determination is made, the NPWC will e-mail the requestor an electronic copy of the PWD. In order to receive e-mails from the NPWC, requestors should ensure that the domain @dol.gov is not blocked by their internet e-mail provider.

    If a requestor does not provide an e-mail address on its Form ETA-9141, item B.15., the NPWC will send the PWD to the requestor's mailing address by U.S. mail.

    September 01, 2016

    1. Why did I not receive an e-mail with the prevailing wage determination (PWD)? Why are National Prevailing Wage Center (NPWC) e-mails going to my junk folder?

    Unless NPWC receives a bounce-back e-mail indicating non-delivery, it is considered delivered. Please note, sometimes e-mails are identified as spam by your e-mail service provider and filtered to your junk folder. Each e-mail service provider has its own filters and rules. Therefore, it is important for stakeholders to set their e-mail filters so that e-mails from either flc.portal@dol.gov">oflc.portal@dol.gov or flc.pwd@dol.gov do not go into junk mail folders.

    September 01, 2016

    1. I submitted a PW request using iCERT, but now I want to withdraw the request. Whom do I contact at the NPWC to request a withdrawal?

    Employers/attorneys can withdraw a case themselves using the Withdrawal feature in their iCERT account.

    Note: After receiving a prevailing wage determination, if an employer requests Center Director Review (CDR) and later wishes to withdraw its request, it must submit its request for withdrawal by e-mail to the NPWC Help Desk at FLC.PWD@dol.gov. The email subject line should include the ETA case number and the specific withdrawal requested. Although a request for CDR can be electronically submitted, it cannot be electronically withdrawn. Attempting to withdraw the electronically submitted CDR request through iCERT will cause the initial application to be withdrawn.

    September 01, 2016

    PWD Processing - Standard Occupational Classification (SOC) Assignment

    1. I suggested an "All Other" Standard Occupational Classification (SOC) system code on the request for prevailing wage determination (PWD) I submitted, but the PWD I received used a different SOC? When are "All Other" SOCs used?

    The National Prevailing Wage Center (NPWC) assigns the most applicable, specific SOC based on the job duties provided in the prevailing wage request. The “All Other” SOC is a grouping of occupations for which SOC definitions and tasks vary widely. As wage data reported for “All Other” SOCs combines wages for multiple occupations, the NPWC only uses "All Other" SOCs (e.g., “Biologists, All Other”) when the job duties cannot be reasonably classified in a more specific SOC.

    September 01, 2016

    1. What does the National Prevailing Wage Center (NPWC) use to determine the appropriate classification for an occupation?

    The NPWC will identify the appropriate occupational classification by comparing the duties of the employer’s job opportunity to the duties associated with the Standard Occupational Classification (SOC) definition and O*NET tasks. The O*NET descriptions are based on the SOC codes that are used by the Occupational Employment Classification (OES) program to classify occupational wage information.

    September 01, 2016

    1. How does the National Prevailing Wage Center (NPWC) determine the appropriate Standard Occupational Code (SOC) to assign to an employer’s job opportunity?

    In assigning an SOC code to an employer’s job opportunity, the NPWC uses a “duties test” that assesses the best match between the duties of a potential SOC code as described on O*Net and the job duties as articulated by the employer on the Form ETA-9141, Application for Prevailing Wage Determination. The job duties of an SOC occupation may be found under the “Tasks” category of the SOC occupation’s Details Report. The NPWC will review all of the tasks listed in the Details Report to ensure the most appropriate code is assigned. Note that even if an SOC includes a broader set of duties than those performed under the employer’s job opportunity, the employer’s job opportunity is within an SOC if the occupation’s duties are included under the umbrella of duties within a given SOC.

    September 01, 2016

    PWD Processing - Combination of Occupations

    1. When does the NPWC consider a position to include a combination of occupations? How does NPWC assign an occupational classification and wage to a position involving a combination of occupations?

    In assigning a Standard Occupational Classification (SOC) code to an employer’s job opportunity, the NPWC applies a “duties test” to determine the best match between the employer’s job offer as set forth in the employer’s Form ETA-9141, Application for Prevailing Wage Determination, and an SOC code. In doing so, the NPWC compares the duties of the employer’s job opportunity with the SOC definition and O*NET tasks for relevant SOCs to determine whether the duties appear within a single occupation or encompass the duties of two or more occupations.

    In some cases, the position reflects duties that are not found within a single SOC; rather, there may be two or more separate and distinct SOC codes that do not involve the same or overlapping duties. For example, when an employer’s job duties require a bellhop to perform bellhop duties and also park cars, which is not a normal occupational duty for a bellhop, the NPWC will view the employer’s job opportunity as a combination of two distinct occupations. The NPWC will assign all SOCs applicable to the combination of occupations on the Form ETA-9141. The prevailing wage for the combination of occupations is the highest of the prevailing wages among all applicable SOCs. The SOC upon which the assigned prevailing wage is based will be identified in Section F.3 of the Form ETA-9141 and the other applicable SOCs will be identified in Section F.7.

    In contrast, if an employer’s job opportunity reflects duties that are common across various SOCs, it is not a combination of occupations. For example, the occupations 37-2012 Maids and Housekeeping Cleaners and 51-6011 Laundry and Dry-Cleaning Workers have tasks in common such as washing clothes. Should a job opportunity fall within these shared tasks it is not a combination of occupations.

    September 01, 2016

    Employer-provided Surveys - H-2B

    1. How do I inform the National Prevailing Wage Center (NPWC) on the Form ETA-9141, Application for Prevailing Wage Determination, that I am requesting NPWC’s consideration of an employer-provided survey for use in the H-2B program?

    To request consideration of an employer-provided survey and to ensure that the NPWC properly processes the survey information you provide, the appropriate sections on the Form ETA-9141, Section D (Wage Processing Information), must be completed:

      • the employer must mark “No” where asked whether the employer is covered by American Competitiveness and Workforce Improvement Act (ACWIA) provisions, as ACWIA does not apply to H-2B applicants; and
      • the employer must mark “No” in question D.2 to inform the NPWC that the job opportunity is NOT covered by a CBA or a professional sports league’s rules and regulations; and
      • the employer must mark “No” in question D.3 to inform the NPWC that the employer is NOT requesting a prevailing wage determination pursuant to the Davis-Bacon Act (DBA) or the McNamara Service Contract Act (SCA); and
      • the employer must mark “Yes” in question D.4 to inform the NPWC that the employer is requesting a prevailing wage determination pursuant to an alternate survey; and

    § the employer must provide the name of the survey under which the employer is requesting a determination; (D.4a)

    § the employer must also provide the date of publication of the survey under which the employer is requesting a determination; (D.4b)

    Note: The regulations do not permit NPWC to issue a PWD using an employer-provided survey for a job opportunity covered by a Collective Bargaining Agreement or a professional sports league’s rules and regulations

    September 01, 2016

    1. What documents do I submit with my Form ETA-9141, Application forPrevailing Wage Determination, when requesting consideration of an employer-provided survey for use in the H-2B program?

    The employer must complete and submit Form ETA-9165, Employer-Provided Survey Attestations to Accompany H-2B Prevailing Wage Determination Request Based on a Non-OES Survey. With the Form ETA-9165, the employer must submit a copy of the entire survey, or a copy of the portions of the survey necessary to show compliance with 20 CFR 655.10(f), including the methodological requirements at 655.10(f)(4). If the NPWC determines that additional information is required, it will send written notification in the form of a Request for Information (RFI).

    The NPWC will accept a Form ETA-9165 and survey document submitted with a Form ETA-9141, Application for Prevailing Wage Determination, via the iCERT System or U.S. mail to the current address of the NPWC available on the OFLC Web site athttp://www.foreignlaborcert.doleta.gov.

    September 01, 2016

    1. Where can I find instructions on completing the required Form ETA-9165, Employer-Provided Survey Attestations to Accompany H-2B Prevailing Wage Determination Request Based on a Non-OES Survey, to accompany my H-2B request for a prevailing wage determination?

    The instructions on how to complete the Form ETA-9165 to provide the required employer-provided survey attestations can be found on the Office of Foreign Labor Certification Web site under Forms and Instructions: http://www.foreignlaborcert.doleta.gov/form.cfm

    September 01, 2016

    1. I am ready to submit my request for prevailing wage determination for use in connection with an H-2B application. How can I upload my completed Form ETA-9165, Employer-Provided Survey Attestations to Accompany H-2B Prevailing Wage Determination Request Based on a Non-OES Survey, into the iCERT System?

    To upload the Form ETA-9165 into the iCERT System users will select the “Browse” button and then select the file saved in their system. Once the document has been identified, select the “Upload” button. The uploaded document will then be displayed in the attachments table.

    September 01, 2016

    1. May I request consideration of a survey with my H-2B prevailing wage request if the job opportunity is covered by a Collective Bargaining Agreement (CBA) or a professional sports league’s rules and regulations?

    No. If the job opportunity is covered by a CBA or a professional sports league’s rules and regulations the wage rate set forth in that source is considered the prevailing wage for labor certification purposes.

    September 01, 2016

    1. An employer-provided survey used to determine the prevailing wage in the H-2B program must have been conducted by a bona fide third party. Who is a bona fide third party?

    A bona fide third party has no interest in the outcome of the survey; it only has an interest in producing a survey product that meets statistical and regulatory standards. State agencies, including state colleges and universities, are bona fide third parties. Alternatively, the third party may be a non-governmental private entity that produces the survey as a published work, to include continuous updates, or on commission, so long as the entity has no interest in the outcome of the survey. An employer association may be considered a bona fide third party only if it does not have any H-2B employers as members.

    The following are not bona fide third parties under this final rule: any H-2B employer or any H-2B employer’s agent, representative, or attorney.

    September 01, 2016

    1. My request for an H-2B prevailing wage determination includes multiple worksites in various geographic areas. May I request consideration of an employer-provided survey for only some of the worksites on my application?

    Provided the job opportunity is not covered by a collective bargaining agreement or a professional sports league’s rules and regulations, under the 2015 H-2B Wage Rule as modified by the 2016 DOL Appropriations Act, an employer may submit an employer-provided survey for consideration as the wage source for some or all of its worksites. If the NPWC accepts the survey as meeting methodological requirements and the survey provides wage findings for some but not all of the worksites identified on the Form ETA-9141, Application for Prevailing Wage Determination, the NPWC will use the survey to determine the prevailing wage for the worksites covered. The NPWC will use the appropriate OES wage for the other worksites.

    September 01, 2016

    1. I want to request consideration of a survey with my request for a prevailing wage determination to be used in the H-2B program. How can I be sure my survey meets all the methodological requirements set forth in the 2015 H-2B Wage Rule, as modified by the 2016 DOL Appropriations Act?

    To comply with the 2015 H-2B Wage Rule methodological requirements, as modified by the 2016 DOL Appropriations Act, the employer-provided survey must:

      • Have been independently conducted and issued by a bona fide third party;

        Important Note
        : A bona fide third party does not include any H-2B employer, agent, representative, or attorney.
      • Provide the arithmetic mean of the wages paid to all workers similarly employed in the area of intended employment. However, if the survey only publishes a median, and does not provide the arithmetic mean, the median will be acceptable. A survey must not be based on wage tiers and must not include only entry level workers;
      • Be the result of a reasonable, good faith effort to contact all employers of workers in the occupation and geographic area surveyed, or the result of a randomized sampling of all such employers;
      • Include wage data from at least three (3) employers and thirty (30) workers;

    Important Note: While a survey must reflect wages in the area of intended employment, the geographic area surveyed may be extended beyond the area of intended employment, but only if all of the following conditions are met: (1) The expansion is limited to geographic areas that are contiguous to the area of intended employment; (2) the expansion is required to meet either the 30-worker or three-employer minimum; and (3) the geographic area is expanded no more than necessary to meet these minimum requirements. Expansion may cross state lines, as appropriate.

      • Report wages across industries that employ workers in the occupation surveyed;
      • Include all types of pay in the wage reported, as applicable and set out on the Form ETA-9165. For example, if employers in the occupation and area of intended employment pay a base hourly wage and a piece rate, the wage reported in the survey must be the mean hourly rate paid to similarly employed workers including both types of pay. In that circumstance, the piece rate and hourly base rate must not be reported separately in the survey unless the combined mean hourly rate including both the base and piece rate is also reported; and
      • Be based on recently collected data. Specifically, the survey must be the most current edition of the survey and it must be based on wages paid not more than 24 months from the date of survey’s submission for NPWC consideration.

    September 01, 2016

    1. Does the Department permit employer-provided surveys that separate wage data by skill level for workers in an occupation within the area of intended employment for the H-2B program?

    No. Employer-provided surveys that report skill-level based wages are prohibited under the 2015 H-2B Wage Final Rule. Employer-provided surveys must provide the single arithmetic mean, or median, of the wages paid to all workers in the occupational classification within the area of intended employment, regardless of skill level or experience, education, and length of employment.

    September 01, 2016

    1. Can I use an employer-provided survey that limits the sample to only U.S. workers for the H-2B program?

    No. The 2015 H-2B Wage Final Rule requires that data collection for a survey be conducted without regard to the immigration status of workers. The survey must provide the arithmetic mean of the wages paid to all workers in the occupational classification within the area of intended employment; it may not exclude worker data based on immigration status. Accordingly, an employer-provided survey that samples only U.S. workers, or only nonimmigrant workers, will be rejected.

    September 01, 2016

    1. Can an employer-provided survey be used for the H-2B program even if the employer's job description has restrictive or atypical requirements for the job opportunity, such as extensive travel?

    Yes. As long as the employer-provided survey meets all the methodology requirements in the Department's regulation at 20 CFR 655.10(f), an employer may request consideration of a survey even if the employer's job description has restrictive or atypical duties/requirements for the job opportunity. See FAQ 18 for discussion of a comparison of the job duties in the survey and the H-2B job opportunity.

    September 01, 2016

    1. Can I use an employer-provided survey that presents data and wage findings for multiple occupations, not just the occupation for my job opportunity?

    Yes, provided the survey meets all regulatory requirements for an acceptable employer-provided survey in the H-2B program for the employer’s job opportunity and reports wage data and results for each occupation separately.

    September 01, 2016

    1. Is a survey that provides discrete wage results for position(s) requiring distinct certification(s) an acceptable source for determining the prevailing wage in the H-2B program?

    A survey that provides a separate arithmetic mean, or median, for distinct positions within an occupation may be acceptable. For use in the H-2B program, a survey cannot provide discrete wage results for different skill levels (e.g., entry-level versus experienced) within an occupation. However, where positions within a general occupation are distinguishable job opportunities because they have different, established hiring requirements, such as different certifications from independent authorities, a survey specific to one of those positions may be acceptable if it appropriately reflects the wage of similarly employed workers and otherwise satisfies the requirements of 20 CFR 655.10(f)(4). For example, different types of ski instructors must have distinct certifications from independent, industry-wide organizations in order to be eligible for hire for certain positions within the occupation. A survey reflecting a wage result for one type of ski instructor would be acceptable provided it meets regulatory requirements.

    September 01, 2016

    1. I am requesting consideration of an employer-provided survey with my application for an H-2B prevailing wage determination. The survey only provides median wages in the area of intended employment. Will this median wage be acceptable?

    In cases in which a mean wage is not normally published in a survey, but the survey provides a median wage, and the employer-provided survey meets all the methodology requirements in the Department’s regulation at 20 CFR 655.10(f), the median wage will be considered acceptable for the purpose of processing the request for a prevailing wage.

    Note: The median wage is the value where there are an equal amount of data points both above and below. For example, in a data set including 10, 10, 20 , 21, 22, 22, and 22, the median is 21 and in a data set including 8, 8, 9, 11, 16, 17, and 17, the median is 11.

    September 01, 2016

    1. How can I ensure my survey provides the required arithmetic mean wage?

    The arithmetic mean is defined as the sum of wages paid to all workers divided by the number of workers included in the sample. It is not acceptable for employers to submit a survey with the wage calculated by dividing the sum of wages paid by employers by the number of employers participating in the survey.

    To ensure all types of pay are considered in the arithmetic mean, the mean should be calculated by using a total of the compensation paid to all workers divided by the total number of hours all workers spent to earn that compensation. (See sample compensation calculation table below.)

    Employer

    Workers

    Compensation

    Hours

    A

    5

    $8,272.08

    802

    B

    7

    $11,189.18

    918

    C

    23

    $42,002.76

    3678

    D

    19

    $38,890.72

    3344

    E

    4

    $8,042.66

    794

    Total

    $108,397.40

    9536

    Hourly Rate

    $11.37 per hour

    ($108,397.40 divided by 9536 hours)

    September 01, 2016

    1. 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?

    Yes, under certain limited conditions, the geographic area surveyed may be expanded incrementally until employer-provided 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.

    September 01, 2016

    1. I submitted a request for prevailing wage determination (PWD) seeking consideration of an employer-provided survey for the H-2B program. Will the National Prevailing Wage Center (NPWC) request additional information about the survey?

    During the course of processing a request for PWD, the NPWC may ask an employer for additional information before issuing a determination.

    Note: If, despite additional information provided, the NPWC determines the employer-provided survey does not meet regulatory requirements, it will reject the use of the survey for that particular determination and issue the PWD using the OES mean.

    September 01, 2016

    1. I requested consideration of an employer-provided survey with an H-2B request for a prevailing wage determination (PWD). How will the employer’s job duties be analyzed in order to determine if the survey’s job description provides a reasonable match for the job opportunity being offered?

    To be an acceptable source for determining the prevailing wage in the H-2B program, an employer-provided survey must reflect the wages of all workers similarly employed in the area of intended employment. In addition to meeting all other methodological requirements, the survey must reflect wage data collected from employers of workers in the same occupation as the job opportunity presented on the Form ETA-9141, Application for Prevailing Wage Determination. See 20 CFR 655.10(f)(4)(i). The position described by the survey must have similar duties to the entries on the Form ETA-9141. While an exact match is not required, the survey position must be described in enough detail to establish that the employer’s job duties are covered by the occupation surveyed.

    The survey’s job description should take into account the nature and duties of the employer’s job opportunity in order to be an accurate representation of wages paid to other workers similarly employed. The NPWC will find the survey to be a reasonable match for the Form ETA-9141 even if the duties included in the survey and Form ETA-9141 are not an exact match provided that the employer’s job duties can be reasonably classified within the surveyed occupation.

    In contrast, the survey would not be a reasonable match if the survey’s job description indicates the survey represents wages paid to workers who are not employed in jobs similar to the one described on the Form ETA-9141. For example, a survey would not be a reasonable match in the following scenarios:

      • The employer’s Form ETA-9141 includes duties reflecting a combination of occupations, but the survey covers workers performing duties in only one of those occupations.
      • The survey covers workers performing duties in a combination of occupations, but the Form ETA-9141 reflects duties of only one of the occupations.
      • The duties on the survey differ from the duties on the Form ETA-9141 such that the employer’s job opportunity cannot be reasonably be classified within the surveyed occupation.
      • The surveyed occupation combines workers who perform multiple, noncomparable sets of job duties, but the Form ETA-9141 does not include a similar broad range of job duties.

    Also, the position described by the survey and the survey’s wage finding must reflect the occupation as a whole, without regard to skill levels. The 2015 H-2B Wage Final Rule bars the use of skill levels in employer-provided surveys. It requires that the survey be based on job duties performed and must provide the arithmetic mean of the wages paid to all workers in the occupation, regardless of skill level, experience, education, or length of employment, employed in the area of intended employment. Similarly, for surveys only providing a median wage, the survey must provide the median of all wages paid to all similarly employed workers, regardless of skill level, experience, education, or length of employment, within the area of intended employment. Therefore, the use of surveys providing wage tiers based on skill levels, including surveys that include only entry level workers, will be rejected and the appropriate wage from the Occupational Employment Statistics (OES) database will be issued.

    September 01, 2016

    1. I requested consideration of an employer-provided survey with an H-2B request for a prevailing wage determination (PWD), but the determination I received had an Occupational Employment Statistics (OES) wage. Why was the survey not used?

    When the National Prevailing Wage Center (NPWC) does not accept a survey in connection with an H-2B prevailing wage determination request, the NPWC includes an explanation in the Additional Notes section of the Form ETA-9141, Application for Prevailing Wage Determination, as to why the survey does not meet the requirements. If the requestor did not include a notation on the Form ETA-9141 requesting the use of survey, did not submit a completed Form ETA-9165 with a copy of the relevant portions of the survey, or submitted a survey that did not meet the regulatory requirements in 20 CFR 655.10, the NPWC will issue an appropriate wage from the Occupational Employment Statistics (OES) database per 20 CFR 655.10(b)(2).

    If the requestor referenced the survey on the Form ETA-9141 and the PWD did not include an explanation for non-acceptance, send an e-mail to FLC.PWD@dol.gov with the subject line: Request for Review of Survey: Wage Source P-xxx-xxxxx-xxxxxx.

    September 01, 2016

    1. My survey documentation is based on wages paid no more than 24 months before the date of submission to DOL. Why was my survey rejected?

    The NPWC only uses employer-provided surveys that meet all required employer-provided survey criteria. In some cases, a survey based on wages paid no more than 24 months before the date of submission of the Form ETA-9141, Application for Temporary Employment Certification, does not meet other employer-provided survey criteria. For example, it may not be the most recent edition of the survey at the time the Form ETA-9141 is submitted or it may use skill levels. Where an employer-provided survey does not meet all required survey criteria, it will be rejected and the appropriate wage from the Occupational Employment Statistics (OES) database will be issued.

    September 01, 2016

    1. The 2015 H-2B Wage Final Rule allows employers to request consideration of state-conducted wage surveys. How can I obtain a state-conducted wage survey?

    The State agency or agencies that produce such State-conducted surveys will vary from State to State. The Web sites of State agency(ies), colleges, or universities in the State where the job opportunity is located may provide information about which State entities seem most likely to produce such surveys and provide contact information for further inquiry.

    Important Note: No State agency, including the State Workforce Agency, is obligated by the 2015 H-2B Wage Final Rule to conduct a survey upon request.

    September 01, 2016

    1. How does an employer-provided survey meet the requirement that the survey not limit the survey participants by the nature of the employer?

    The survey must use the duties to be performed as the standard for including a worker or employer’s wage information. Factors relating to the nature of the employer, such as whether the employer is public or private, for profit or nonprofit, large or small, charitable, a religious institution, or a job contractor are not relevant to determining the prevailing wage for an occupation. Employer-provided surveys in which the survey’s sample is limited based on the nature of the employer rather than duties of the job will be rejected.

    Reminder: Employer-provided surveys must reflect a good faith effort to include all employers who employ workers in the occupation and area surveyed or a randomized and representative sample of those employers.

    September 01, 2016

    Collective Bargaining Agreement (CBA) or Professional Sports League

    1. What documents do I submit with my Form ETA-9141, Application for Prevailing Wage Determination, when the job opportunity is covered by a collective bargaining agreement (CBA)?

    When a job opportunity is covered by a CBA, the employer must submit the following at the time it submits the Form ETA-9141:

      • A copy of the CBA or, at minimum, copy of the portions of the CBA that contain key information about the job opportunity, including:

    § The scope of the CBA;

    § The class(es) of workers the CBA covers;

    § The employer(s) and location(s) the CBA covers;

    § The validity period of the CBA and, if expired, the approved extension period; and

    § The agreed to wage for the job opportunity.

      • A letter, on letterhead, from the employer:

    § Stating the portions of the CBA containing key information (see list above);

    § Confirming the job title/occupation title used in the CBA for the job opportunity described on the Form ETA-9141; and

    § Confirming the appropriate wage for the job opportunity described on the Form ETA-9141, as presented in the wage portion of the CBA.

      • A letter, on letterhead, from the employees’ duly authorized representative:

    § Stating the portions of the CBA containing key information (see list above);

    § Confirming the job title/occupation title used in the CBA for the job opportunity described on the Form ETA-9141; and

    § Confirming the appropriate wage for the job opportunity described on the Form ETA-9141, as presented in the wage portion of the CBA.

    If the NPWC determines that additional information is required, it will send written notification in the form of a Request for Information (RFI).

    September 01, 2016

    1. What documents do I submit with my Form ETA-9141, Application for Prevailing Wage Determination, when the job opportunity is covered by a professional sports league’s rules or regulations?

    When a job opportunity is covered by a professional sports league’s rules or regulations, the employer must submit the following at the time it submits the Form ETA-9141:

      • A copy of the professional sport league’s rules or regulations or, at minimum, a copy of the sections of those rules or regulations that contain key information about the job opportunity, including:

    § The scope of the rules or regulations;

    § The class(es) of workers the rules or regulations cover;

    § The employer(s) and location(s) the rules or regulations cover;

    § The effective date of the rules or regulations; and

    § The agreed to wage for the job opportunity.

      • A letter, on letterhead, from the employer:

    § Stating the sections of the professional sports league’s rules or regulations containing key information (see list above);

    § Confirming the job title/occupation title used in those rules or regulations for the job opportunity described on the Form ETA-9141; and

    § Confirming the appropriate wage for the job opportunity described on the Form ETA-9141, as presented in the wage portion of the rules or regulations.

      • A letter, on letterhead, from a representative of the professional sports league:

    § Stating the relevant sections of the professional sports league’s rules or regulations containing key information (see list above);

    § Confirming the job title/occupation title used in those rules or regulations for the job opportunity described on the Form ETA-9141; and

    § Confirming the appropriate wage for the job opportunity described on the Form ETA-9141, as presented in the wage portion of the rules or regulations.

    If the NPWC determines that additional information is required, it will send written notification in the form of a Request for Information (RFI).

    September 01, 2016

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