Final Rule on H-2B Wage Calculations

The U.S. Department of Labor’s (DOL’s) Employment and Training Administration has issued a final rule that addresses the calculations used to set wage rates for H-2B workers.

The H-2B program allows the entry of foreign workers into the U.S. when qualified U.S. workers are not available and when the employment of foreign workers will not adversely affect the wages and working conditions of similarly employed U.S. workers. The H-2B program is limited by law to 66,000 visas per year.

The final rule requires employers to pay H-2B and U.S. workers recruited in connection with an H-2B job application a wage that meets or exceeds whichever is highest: the federal, state or local minimum wage or the prevailing wage. The final rule also permits the use of private wage surveys in limited circumstances.

Under the rule, the prevailing wage would be based on the highest of the following:

• Wages established under a collective bargaining agreement
• A wage rate established under the Davis-Bacon Act or the Service Contract Act for an occupation in an area of intended employment, if the job opportunity is in an occupation for which such a wage rate has been determined
• The arithmetic mean wage established by the Occupational Employment Statistics wage survey for an occupation in an area of intended employment

The new wage rates will apply to wages paid for work performed on or after Jan. 1, 2012.