H-2B Prevailing Wage

The H-2B program admits workers for temporary nonagricultural jobs; the FLAG program page points to its disclosure data for the kinds of work certified. Before an employer can file for certification it must hold a prevailing wage determination from the Department of Labor’s National Prevailing Wage Center (NPWC), and the wage on that determination becomes the floor for the job order, the recruitment of U.S. workers and the pay of everyone on the job. The rule is 20 CFR 655.10, in subpart A of part 655, and the Wage and Hour Division summarizes the wage requirements in its Fact Sheet 78C.

The offered wage

Under 655.10(a) the employer must advertise the position, and then offer and pay, at least the prevailing wage obtained from the NPWC or the federal, state or local minimum wage, whichever is highest. The same rate goes to the H-2B workers and to the employer’s U.S. workers in corresponding employment, meaning those doing substantially the same work. A determination never authorizes a wage below what any other applicable law requires, so an employer in a city with its own minimum wage ordinance compares the determination against that figure too; the local minimum wage pages on this site list the ordinances it has verified.

The wage must be paid free and clear, at least every two weeks or at the prevailing frequency for the occupation in the area if that is more often. An employer may pay by commission, bonus or piece rate, but any week in which such pay falls short of the offered hourly wage for the hours worked must be made up, and a piece rate must be no less than what non-H-2B employers in the area pay for the same work.

How the NPWC sets the figure

The sources are ranked in 655.10(b). A collective bargaining agreement negotiated at arm’s length between the union and the employer supplies the prevailing wage when one covers the job. Otherwise the prevailing wage is the arithmetic mean of the wages of workers similarly employed in the area of intended employment, taken from the wage component of the Bureau of Labor Statistics’ Occupational Employment and Wage Statistics survey. Unlike the H-1B and PERM programs, the H-2B rule does not provide skill levels: the mean for the occupation in the area is the figure, and the occupation pages on this site show that mean for every occupation nationally and the state-level mean on each state profile, which is the same statistic for a larger area than the NPWC uses. A professional athlete’s wage is whatever the league’s rules set.

An employer may instead submit its own survey, but only in the narrow circumstances listed in 655.10(f): the survey was conducted and issued by a state agency, college or university; or the job is in an area where OEWS does not collect data or publishes only a national mean for the occupation; or the job falls outside the Standard Occupational Classification or into an “all other” code. The survey goes in with Form ETA-9165, which documents its methodology, and must report the mean (or, failing that, the median) of all similarly employed workers in the area, draw on at least 30 workers and three employers, cover the industries that employ the occupation, include all types of pay, and rest on wages paid within the previous 24 months. For the second and third categories a bona fide third party, not the employer or its agent, must have administered the collection. The NPWC states its reasons in writing when it rejects a survey, and the employer may seek review under 655.13.

Multiple worksites and validity

When a job involves several worksites within one area of intended employment and the rates differ among them, the highest applies (655.10(d)). The NPWC returns Form ETA-9141 endorsed with the wage, its source and a validity period of between 90 and 365 days; the determination must be valid on the day the job order is posted with the state workforce agency, and the employer keeps it for three years from issuance or from the final decision on the application, whichever is later. For jobs on Guam the same section applies, subject to the transfer of wage-setting authority there to the Department of Labor.

Enforcement and a standing footnote

The Wage and Hour Division investigates H-2B wage compliance, and the employer must produce its determination to a Division representative during an investigation (655.10(j)). Fact Sheet 78C also records that since 2016 an appropriations rider has barred the Department from spending funds to enforce two provisions of the 2015 rule, the definition of corresponding employment in 655.5 and the three-fourths guarantee in 655.20; the fact sheet states that the provisions remain in effect as legal duties even though the Department does not enforce them while the rider stands. Whether the rider is in the current appropriations law is a question this page does not answer.

Related

The H-2B wage is a single mean for one job in one area, requested case by case. Its agricultural counterpart, the H-2A Adverse Effect Wage Rate, is published by state for everyone; the PERM and H-1B rules use the same NPWC and survey but add wage levels.