USCIS has resumed processing of all Form I-129 H-2B petitions for temporary non-agricultural workers. On March 22, 2013, USCIS temporarily suspended adjudication of most Form I-129, Petition for Nonimmigrant Worker, H-2B petitions while the government considered appropriate action in response to the Court order in Comite de Apoyo a los Trabajadores Agricolas et al v. Solis, 2:09-cv-00240-LDD (E.D. Pa). The Court Order vacated a portion of the 2008 wage methodology rule dealing with the way the Department of Labor (DOL) determines the prevailing wage when relying on the Bureau of Labor Statistics' Occupational Employment Statistics (OES) survey, and provided the Department of Labor with 30 days to come into compliance.
Interim Final Rule
The Department of Homeland Security (DHS) and DOL jointly published the Interim Final Rule (IFR), Wage Methodology for the Temporary Non-Agricultural Employment H-2B Program, Part 2, in the Federal Register on April 24, 2013. This IFR revises the prevailing wage methodology used by DOL to calculate certain prevailing wages paid to H-2B workers and U.S. workers recruited in connection with an H-2B Application for Temporary Employment Certification.
This IFR applies to H-2B work being performed on or after April 24, 2013, including by individuals currently working under an H-2B petition that was approved before April 24, 2013. Employers who have H-2B workers performing work on or after April 24, 2013, will receive a new prevailing wage determination from DOL in accordance with this IFR, if the original prevailing wage determination was based on the Occupational Employment Statistics (OES) survey four-tier wage system.
This IFR also applies to employers who have already received a temporary employment certification and have filed or will file a Form I-129 for H-2B employment with USCIS. Those employers will be responsible for providing wages that comply with this IFR for all work performed on and after the date an employer receives a supplemental prevailing wage determination from DOL, regardless of when their petition is or was approved by USCIS. If an H-2B petition is currently pending with USCIS, DOL will issue a copy of the supplemental prevailing wage determination to USCIS when it is issued to the employer.
Requirement to Pay the New Wage
Employers are required to offer and pay this new wage for any work performed on and after the date the employer receives the supplemental prevailing wage determination from DOL.
By signing the Appendix B.1 of the H-2B Application for Temporary Employment Certification, each employer who has a certified H-2B application assumed the obligation to offer and pay to its H-2B workers and U.S. workers recruited in connection with the H-2B application, a wage that equals or exceeds the highest of the most recent prevailing wage issued by DOL to the employer for the time period the work is performed, or the applicable Federal, State, or local minimum wage if higher.
To learn more about the revised H-2B prevailing wage methodology, view frequently asked questions prepared by the Department of Labor.
USCIS will begin accepting new requests for premium processing of H-2B petitions on May 1, 2013.
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