DOL Notice of Proposed Rulemaking on H-2B Employer-Provided Survey Wage Methodology

November 18, 2024. Office of Foreign Labor Certification Publishes Notice of Proposed Rulemaking: H-2B Employer-Provided Wage Surveys.

The Employment and Training Administration (ETA) published a notice of proposed rulemaking (NPRM) in the Federal Register proposing to amend its regulations at 20 CFR 655.10(f) for employer-provided wage surveys for the H-2B program. The publication of the NPRM is necessary because the U.S. District Court for the District of Columbia held the 2015 Wage Rule (the Rule), specifically the data and methodology requirements of 20 CFR 655.10(f)(2) and (f)(4), to be procedurally invalid for failure to comply with the Administrative Procedure Act’s (APA) notice-and-comment requirements. Williams, et al. v. Walsh, et al., 648 F.Supp.3d 70, 75 (D.D.C. 2022). Although declining to vacate the Rule, the court remanded it for further consideration.

ETA is publishing this NPRM to cure the APA violation found by the court. Additionally, this NPRM proposes to amend the Rule to clarify existing requirements for employer-provided surveys in the H-2B program, add new requirements to increase the accuracy of employer-provided surveys, and eliminate Form ETA-9165, Employer-Provided Survey Attestations to Accompany H-2B Prevailing Wage Determination Request Based on a Non-OEWS Survey, to increase efficiency. The comment period will close on Friday, January 17, 2025.