This is another update on the H2B wage issue. On August 30, 2010, the U.S. District Court for the Eastern District of Pennsylvania in Comitè de Apoyo los Trabajadores Agricolas (CATA) v. Solis, et al., Civil No. 2:09-cv-240-LP, 2010 WL 3431761 (E.D. Pa.) invalidated the Department’s use of skill levels in establishing prevailing wages and the Department’s reliance upon Occupational Employment Statistics (OES) data in lieu of Davis Bacon Act and Service Contract Act rates. The court order requires the Department to complete a new rulemaking regarding the calculation of prevailing wage rates in the H-2B program within 120 days.
The Department has been issuing prevailing wage determinations with a validity period ending on June 30, 2011, since the OES data is updated annually each June. Given that the Department has been ordered to promulgate a new regulation in approximately 3 months, which may result in changes to the calculation of the prevailing wage rates, the Department, beginning on September 30, 2010, will issue H-2B prevailing wage determinations with validity periods of three months, in accordance with §655.10(d). This change does not affect the validity periods of existing prevailing wage determinations. It also does not affect any new requests for prevailing wage determinations that will be used in connection with PERM, H-1B, H-1B1 or E-3 applications. We will keep you posted as new information becomes available.