The U.S. Department of Homeland Security (DHS) and the U.S. Department of Labor (DOL) issued a joint interim final rule establishing a new methodology for calculating prevailing wages in the H-2B program. As indicated in our firm's Immigration Update dated April 1, 2013, a district court enjoined the DOL from using its previous prevailing wage methodology in the H-2B program. As a result of the district court's injunction, both the DOL and the USCIS suspended adjudication of applications in the H-2B program. However, upon the release of the joint interim final rule, both the USCIS and DOL have indicated that they will resume adjudications of applications in the H-2B program.

Under the interim final rule, the DOL will not use its Occupational Employment Statistics (OES) wage survey four-level prevailing wage approach on the H-2B program. Instead, the DOL will use either the OES wage survey collective bargaining agreements, the Davis-Bacon Act, the Service Contract Act or employer-provided surveys. If the DOL uses the OES wage survey, the prevailing wage will be based on the arithmetic mean wage. Therefore, employers that rely upon the OES wage survey in the H-2B program will encounter a significant increase in the DOL's prevailing wage for their H-2B positions.

DOL has indicated that the new wage methodology is not only prospective in nature. The DOL will be issuing revised prevailing wage determinations to employers that currently employ H-2B workers. The DOL has indicated that even though the H-2B application may have already been approved based on the previous prevailing wage, the employer does have a responsibility to offer the new prevailing wage based on the revised prevailing wage methodology when it receives the revised prevailing wage determination from the DOL.