H2B Visa Attorney – DOL Now Issuing Two Prevailing Wage Determinations for Certain H-2Bs

As lawyers specializing in the H2B visa process, we wanted to share the following update. The Department of Labor (DOL) is now issuing two prevailing wage determinations (PWD) for H-2B cases. Since last week we have received new PWDs with the following message attached:

On January 19, 2011, the Department published a Final Rule that revised the methodology by which the Department calculates prevailing wages under the H-2B program. On August 1, 2011 the Department amended that rule to make wage rates established under this new methodology effective for wages paid to H–2B workers and U.S. workers recruited in connection with an H–2B labor certification for all work performed on or after September 30, 2011. However, on September 28, 2011, the Department announced in the Federal Register a 60-day postponement of the effective date of the Wage Final Rule to November 30, 2011. This delay will permit the various courts involved in litigation relating to the Wage Final Rule to determine the appropriate venue to resolve all claims and to allow the Department to avoid the possibility of administering the H-2B program under potentially conflicting court orders.

As a result of the pending court actions and the delay imposed by the Department, you are now receiving two Prevailing Wage Determinations; attached please find the second of two. The wage listed on this Form ETA 9141 is for work performed until November 29, 2011. The National Prevailing Wage Center has already issued to you an ETA Form 9141 that is based upon the Wage Final Rule, which will, by virtue of that delay in the effective date, apply to work that is to be performed on or after November 30, 2011, unless a new effective date is established in connection with the pending court actions.

If you have not yet advertised for this position, the advertising conducted between now and November 30, 2011 should include the following language:
[Employer] will offer a wage of [at least the wage from this Form 9141]. [Employer] may be required to offer a wage of [the wage from the earlier PWD] for work performed on or after November 30, 2011.

For employers receiving these two PWDs, it must list in the Application for Temporary Employment Certification the two wages in Item G.1, as the range of wages to be offered, and insert in G.3 that [Employer] will offer a wage of [the wage from the first PWD] for work performed on or after November 30, 2011, unless the Department further postpones the effective date of, or is legally barred from implementing, the Wage Methodology for the Temporary Non-Agricultural Employment H-2B Program Final Rule, 76 FR 3452 (Jan. 19, 2011).

You may be required to offer a wage of [wage on the first PWD] for work performed on or after November 30, 2011.

We expect more confusion and delays in this already short duration visa. I am getting ready for many calls from frustrated and confused employers.