The U.S. Department of Labor Employment and Training Administration (ETA) Oct. 4 issued a proposed rule that will alter the procedure for determining wage rates for H-2B temporary workers.

The H-2B program permits employers to hire foreign workers to come to the U.S. to perform temporary nonagricultural work. To qualify for an H-2B visa, the job and the employer’s need must be “one time, seasonal, peak load or intermittent,” must last less than one year and there must be “no qualified and willing U.S. workers available.”

Under the proposed rule, employers are required to pay H-2B workers the highest of the prevailing wage or the federal, state or local minimum wage.  Prevailing wages would be based on wages established by a collective bargaining agreement; those established under the Davis-Bacon Act or the Service Contract Act; or the arithmetic mean wage as determined by an Occupational Employment Statistics survey.  The proposed rule also eliminates the use of private wage surveys and the four-tier wage structure that differentiates wages rates by the theoretical experience, education and supervision required to perform the job that is currently used.  Under the new system, hourly H-2B wage rates in the construction industry expected to incur substantial wage increases.

ETA issued the proposed rule in response to an Aug. 30 decision by the U.S. District Court for the Eastern District of Pennsylvania, which determined the regulations that were issued in 2008 violated the Administrative Procedure Act.  The court ordered new rules regarding wage calculation to be issued within 120 days. 

ETA is accepting comments on the proposed rule until Nov. 4.  To file comments, visit www.regulations.gov.