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The Department of Labor (DOL) announced in its July 3 regulatory agenda that it will be indefinitely suspending previous wage calculation methods for H-2B temporary worker visas – which have been blocked both in federal courts and on Capitol Hill – and moving forward with its “emergency” interim final rule issued in April in conjunction with the Department of Homeland Security (DHS). The interim final rule became effective April 24, when it was issued.

The interim final rule uses the average wage from all four tiers of the Bureau of Labor Statistics’ Occupational Employment Statistics (OES) survey. It also permits employers to use wages calculated under the Davis-Bacon Act but does not require such wage rates unless the H-2B workers are working on a federal construction project. In addition, the rule requires union signatories to pay the wage rates stipulated in their respective collective bargaining agreements—a provision that remains unchanged from previous rules. 

ABC opposed the interim final rule because it will be detrimental to the long-standing success of the H-2B program and its participants—particularly small businesses—and because of ABC’s longstanding position on the inaccuracy and flawed methodology of the Davis-Bacon wage determinations process for federal contractors. 

In addition, DHS’ agenda lists a notice of proposed rulemaking to be published in October that is intended to define substantive versus procedural or technical violations of the requirements for completing the I-9 employment eligibility verification form. The proposed rule also would revise the current DHS regulations and clarify the circumstances in which an employer may be subject to penalties for substantive violations, or may not be subject to penalties for technical or procedural failures, due to the good faith compliance provision when completing the Form I-9.