H-2B Articles

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H2B Visa – Determining the Prevailing Wage Rate

There is a prevailing wage requirement for all H-1B, H-2B and Permanent Labor Certification cases. The law, in all the three cases requires that an employer pay the higher of their actual wage or the prevailing wage in the area for the offered position. Up until fairly recently the determination of the prevailing wage was a relatively simple task.

The implementation of the Visa Reform Act and publication of the US Department of Labor’s Labor Certification for the Permanent Employment of Aliens in the United States, or PERM, regulation changed that procedure requiring the direct involvement of the State Workforce Agencies (SWAs) in the determination of all prevailing wages. These changes brought about policy clarifications and procedural guidance for the SWAs and its users (us).

A. Background

The Department of Labor, Bureau of Labor Statistics (BLS) has provided the wage data for the Occupational Employment Statistics (OES) Program used in the Foreign Labor Certification process since 1998. Beginning in September 1999, the OES program started using the Standard Occupational Classification (SOC) information to classify occupational wage information. The SOC also serves as the framework for information being gathered through the Department of Labor's Occupational Information Network which supersedes the Dictionary of Occupational Titles (DOT) as the resource to be consulted for occupational information for the Foreign Labor Certification process.

The OES survey is a national survey managed by the BLS which provides a large enough sample to allow BLS to determine a prevailing wage for most occupations in every area of intended employment in the United States. The OES wage data is made available at the state and sub-state areas so a SWA can select the geographic area of intended employment. The On-Line Wage Library has been developed to account for these requirements. The SWA should select the state and sub-state area that represents the area for the employer’s job offer.

B. Prevailing Wage Factors

With the implementation of the PERM program, effective March 28, 2005, it became mandatory to follow the regulatory scheme at 20 CFR 656.40 in determining the prevailing wage. The US Citizenship and Immigration Services (USCIS) and DOL have decided that the same policies and procedures shall be followed for the H-2B temporary nonagricultural labor certification program, permanent labor certification program and the nonimmigrant program pertaining to H-1B or H-1B1 professionals in specialty occupations or as fashion models.

All job classifications now start with an entry level wage and progress to a wage that is commensurate with that of a qualified, experienced, or fully competent worker. These wage determinations are made only after considering the experience, education, and skill requirements of an employer’s job description (the job opportunity).

C. Prevailing Wage Determination

The rules require that State Workforce Agencies make prevailing wage determinations as follows:

If the SWA determines the job opportunity is covered by a collective bargaining agreement negotiated at arm’s length and a wage rate has been negotiated under the agreement as evidenced by information provided by the employer, that wage rate shall be controlling.
In the absence of a wage determined under a collective bargaining agreement, SWAs are to determine prevailing wage rates using wage surveys conducted under the wage component of the OES program.
The employer may, if there is no controlling collective bargaining agreement, provide the SWA with a survey, whether public or private. If that survey meets the requirements of the regulations, that rate shall be used by the SWA as the prevailing wage determination in response to that particular request. In addition, an employer can elect to use a current wage rate in the area of intended employment under the Davis-Bacon or the McNamara Service Contract Acts

The regulations also require the SWA to specify the validity period of the prevailing wage determination for H-2B seasonal workers, which shall not be less than 90 days or more than 1 year from the determination date. Under no circumstances may the SWA charge a fee for making or reviewing a prevailing wage determination.

D. Applicability of New Prevailing Wages:

As noted above, the new prevailing wage rules, and the guidance and clarifications that have been issued based on those rules, apply to all permanent labor certification (PERM), H1B, and H-2B cases. Other changes made by the Visa Reform Act, effective March 8, 2005, that apply to all prevailing wage determinations include:

100% of Prevailing Wage Must Be Paid. As of the effective date of March 8, 2005, employers must pay the beneficiary at a rate equal to 100% of the prevailing wage determined by the SWA. This supersedes the old rule that allowed the payment of only 95% of the prevailing wage rate; and
Where the Secretary of Labor uses, or makes available to employers, a governmental survey to determine the prevailing wage (i.e., the OES system), such survey shall provide at least 4 levels of wages commensurate with experience, education, and the level of supervision. Where an existing governmental survey has only 2 levels, 2 intermediate levels may be created by dividing by 3 the difference between the 2 levels offered, adding the quotient thus obtained to the first level and subtracting that quotient from the second level.

E. Relevant Factors for Determining Prevailing Wage: Under § 656.40, the relevant factors used in determining a prevailing wage rate have not changed. These are:

the nature of the job offer,
the area of intended employment, and
jobs duties for workers that are similarly employed.

Nature of the Job Offer: In determining the nature of the job offer, the SWA will review the requirements of the employer’s job offer and determine the appropriate occupational classification. For example, if the employer’s job offer is for a landscape laborer, the SWA will use the skills and experience levels for the highest paying occupation when making the wage level determination.

DID YOU KNOW?

What is Occupational Employment Statistics (OES)?

The Occupational Employment Statistics (OES) conduct surveys and collects data on occupational employment and wages of employees in non-agricultural establishments. It produces estimates of occupational employment and occupational wages.

Area of Intended Employment: The definition of "area of intended employment," found in the regulations at 20 CFR 656.3, states: Area of intended employment means the area within normal commuting distance of the place (address) of intended employment. The On-Line Wage Library has been developed to account for these requirements.

III. Similarly Employed: The regulations, at 20 CFR 656.40, define "similarly employed" as having substantially comparable jobs in the occupational category in the area of intended employment. However, if no such workers are employed by employers in the area of intended employment, other than the employer seeking the prevailing wage determination, similarly employed will mean:

Jobs requiring a substantially similar level of skill within the area of intended employment; or
Substantially comparable jobs in the occupational category as employers outside of the area of intended employment if there are no substantially comparable jobs in the area of intended employment.

F. OES Wage Levels:

When DOL made changes in the wage determination requirements they specified that determinations using a government survey shall be made available for each occupation at 4 levels of wages commensurate with experience, education, and the level of supervision. The SWA is to make the prevailing wage determination using one of the four wage levels for an occupation based on a comparison of the employer’s job requirements to the occupational requirements: tasks, knowledge, skills, and specific vocational preparation (education, training, and experience) generally required for acceptable performance in that occupation.

It is important to remember that the SWA will make a wage level determination only after selecting the most relevant O*NET-SOC occupational code classification. The selection of the O*NET-SOC code is made based on the employer’s description of the job duties of the position, not solely on the title of the employer’s job offer. The SWA will consider the particulars of the employer’s job offer and compare them to the full description of the tasks, knowledge, and work activities generally associated with an O*NET-SOC occupation. This insures that the most relevant occupational code has been selected. The four wage levels used by the OES are described below:

Level I (entry) wage rates are assigned to job offers for beginning level employees who have only a basic understanding of the occupation. These employees perform routine tasks that require limited, if any, exercise of judgment. The tasks provide experience and familiarization with the employer’s methods, practices, and programs. The employees may perform higher level work for training and developmental purposes. These employees work under close supervision and receive specific instructions on required tasks and results expected. Their work is closely monitored and reviewed for accuracy. Statements that the job offer is for a research fellow, a worker in training, or an internship are indicators that a Level I wage should be considered.

Level II (qualified) wage rates are assigned to job offers for qualified employees who have attained, either through education or experience, a good understanding of the occupation. They perform moderately complex tasks that require limited judgment. An indicator that the job request warrants a wage determination at Level II would be a requirement for years of education and/or experience that are generally required as described in the O*NET Job Zones.

Level III (experienced) wage rates are assigned to job offers for experienced employees who have a sound understanding of the occupation and have attained, either through education or experience, special skills or knowledge. They perform tasks that require exercising judgment and may coordinate the activities of other staff. They may have supervisory authority over those staff. A requirement for years of experience or educational degrees that are at the higher ranges indicated in the O*NET Job Zones would be indicators that a Level III wage should be considered. Frequently, key words in the job title can be used as indicators that an employer’s job offer is for an experienced worker. Words such as ‘lead’ (lead analyst), ‘senior’ (senior programmer), ‘head’ (head nurse), ‘chief’ (crew chief), or ‘journeyman’ (journeyman plumber) would be indicators that a Level III wage should be considered.

Level IV (fully competent) wage rates are assigned to job offers for competent employees who have sufficient experience in the occupation to plan and conduct work requiring judgment and the independent evaluation, selection, modification, and application of standard procedures and techniques. Such employees use advanced skills and diversified knowledge to solve unusual and complex problems. These employees receive only technical guidance and their work is reviewed only for application of sound judgment and effectiveness in meeting the establishment’s procedures and expectations. They generally have management and/or supervisory responsibilities.

G. Process for Determining Wage Level:

A step-by-step process used by the SWAs for arriving at the appropriate wage level is described in the following chart. Points are awarded based on the comparison of an employer’s job offer requirements to the general requirements for similar occupations. The points are entered on a worksheet then added to arrive at the wage level. SWAs should follow the step-by-step process while completing the worksheet.

Types of H-2B Visa Jobs

The job occupations for H-2B Seasonal Workers includes:

Hospitality workers
Hotels/Motels
Chefs
Resorts and Theme Parks
Ticket Sales
Cruise ships
Construction workers
Maintenance/Janitorial
Ski Resorts
Landscaping
Golf Courses
Water parks
Security
Ride Operators
Restaurants and bars
Warehouse
Retail Stores

The H-2B visa is available to employers of foreign workers not working in the agricultural field. This visa is available only for work that is temporary in nature.

Both the job itself and the petitioning employer’s need for the specific beneficiary must be temporary. In the language of the regulation, an "H-2B nonagricultural temporary worker is an alien who is coming temporarily to the United States to perform temporary services or labor, is not displacing U.S. workers capable of performing such services or labor, and whose employment is not adversely affecting the wages and working conditions of U.S. workers." Temporary services or labor under the H-2B regulations refer to any job in which the petitioner’s need for the duties to be performed by the employee is temporary, whether or not the underlying job can be described as permanent or temporary. The petitioner’s need, which must generally be one year or less, can be a one-time occurrence, a seasonal need, a peak load need, or an intermittent need. These terms are explained in more detail below.

PUZZLER #1

XYZ Ltd. is in the landscaping business. They require more workers in the spring, summer, and fall. Are they Seasonal or Peak Load?

The need of XYZ Ltd. is Peak Load. If the business completely shuts down for the winter, the need for the services to be performed would be seasonal.

Let us now discuss the four “temporary” concepts in detail.

Recurring seasonal need: The petitioner must establish that the services or labor is traditionally tied to a season of the year by an event or pattern and is of a recurring nature. The petitioner must specify the period(s) of time during each year it does not need the services or labor. The employment is not seasonal if the period during which the services or labor is not needed is unpredictable or subject to change or is considered a vacation period for the petitioner's permanent employees.
Intermittent need: The petitioner must establish that it has not employed permanent or full-time workers to perform the services or labor, but occasionally or intermittently needs temporary workers to perform services or labor for short periods.
Peak-load need: The petitioner must establish that it regularly employs permanent workers to perform services or labor at the place of employment and that it needs to supplement its permanent staff at the place of employment on a temporary basis due to a seasonal or short term demand and that the temporary additions to staff will not become a part of the petitioner's regular operation.
One time occurrence: The petitioner must establish that the petitioner has not employed workers to perform the services or labor in the past and the petitioner will not need workers to perform the services in the future, or that it has an employment situation that is otherwise permanent, but a temporary event of short duration has created the need for a temporary occurrence.

H2B TimeLine

H-2B Visa duration

The duration of the H-2B is limited to the employer's need for the temporary workers. The maximum authorized period is one year.

Numerical Limit

There is a statutory limit of 66,000 on the number of H-2B nonimmigrants during each fiscal year. This cap is split between the first and second half of the year, with 33,000 visas allocated to each half.

Visa Validity

The duration of the visa is limited to the employer's need for the temporary workers. The maximum authorized period is one year.

Extension of Stay

The H-2B visas are granted for 1 year. A foreign national may apply for extensions in one year increments to a maximum of 3 years. Each extension requires submitting a new Labor Certification.

Obtaining a Labor Certification

An employer who seeks to use foreign labor for a short-term under the H-2B visa program, must first obtain a Labor Certificate for a specified number of workers from the US Department of Labor (DOL). The employer does this by presenting evidence to the DOL that its need for labor is temporary and that there are no workers available in the local labor market. Once the employer has obtained the Labor Certificate, he files this with USCIS, which will then adjudicate the petition. The USCIS will deny any petition that does not include a Labor Certificate.

Unavailability of Qualified Workers

The US employer has to prove that there are no qualified workers that are “ready, willing, and available” to fill the offered job. Proving that there are no available workers in the local labor pool involves advertising the position in a local newspaper of general circulation for three consecutive days. The DOL also opens a job order on the internet (through the local state employment office) for a period of ten days. Interested applicants are instructed to send their resumes and references directly to the DOL, which then forwards these to the employer. Given the current labor shortage, our experience has been that few, if any, qualified workers send their resumes to the DOL. Those that do rarely show up for work if offered a job. This may all change given the current economic climate in the US. In any event, the employer must contact any applicant that appears to meet the minimum qualifications. Once the recruitment period comes to an end (usually 14 days), the employer sends a statement of recruitment results to the DOL and waits for approval of the Labor Certificate, usually two to three weeks.

Entry into the US

Applicants should be aware that approval of an H-2B petition does not guarantee that they will be issued a visa, nor does a visa guarantee entry into the United States. The officer at the port of entry has authority to deny admission, even if the applicant has a visa. Also, the officer at the port of entry, not the consular officer, determines how long a person with a temporary work visa is authorized to remain in the United States. At the port of entry, an immigration official will issue a Form I-94, Record of Arrival-Departure, which notes the classification admitted in, and length of stay permitted. The decision to grant or deny a request for extension of stay, however, is made solely by the USCIS.

PUZZLER #2

What types of jobs qualify for H2B status? Can someone who is on H-1B, work part time as an H2B worker and pursue a Green Card?

H-2B is usually for temporary workers in a non-agricultural category. It is for a position that is not full time and permanent in the US. Usually, most H-2Bs are unskilled labor, though they can be in the skilled trades. The paperwork is more extensive than for the H-1B since the employer has to file with the DOL for a temporary labor certification, not just simple LCA as with H-1Bs. A person cannot be on both H-1B and H-2B at the same time.

When to file

Petitions can be filed no more than six months before the proposed employment will begin. However, they should be submitted at least 45 days before the employment will start, otherwise the petition processing and visa issuance may not be completed before work is to begin.

Bringing family members

Spouses of H-2B visa holders, and unmarried children under 21 years of age of H-2B visa holders, are issued an H-4 visa. They may remain in the US as long as the authorized stay of the H-2B visa holder. H-4 visa holders are not permitted to work in the US.

H-2B - Employer Specific

An H-2B visa holder can only work for the employer listed on their H-2B Visa Petition.

Dual Intent

The H-2B is a nonimmigrant visa category which does not support the doctrine of dual intent, i.e., the holder must demonstrate the intent to depart from the US at the end of their authorized stay.

H-2B Visa Holders Whether Qualified to Apply for other Visas & Citizenship

An foreign national in the US on an H-2B work visa is able to file for a Change of Status. Where the change of status pertains to a new job offer the new employer must file a petition on your behalf. Because the H-2B visa is by definition for temporary work you cannot use that work as a basis for a green card application (employment for green card purposes must be full-time). While in H-2B status you can only file a Green Card application that is based on a Family Based Immigration petition. These must be filed by a spouse, parent, son or daughter over the age of 21, or brother or sister who are either US citizens or permanent residents.

Before we end our article, let us have a quick look at some of the positive and negative aspects of the H-2B work visa.

Benefits of H-2B Work Visa:

You are permitted to work legally in the United States for your sponsor;
You are allowed to travel in and out of the United States until the visa expires;
You may change jobs if you can show a new job offer;
You may study on an H-2B visa;
Dependants (spouse and unmarried children) are permitted to accompany you on H-4 dependant visas. They are permitted to study, but not work, while on an H-4 visa; and
You may apply for an extension of stay and/or change of status while on an H-2B visa.

Limitations of H2B Work Visa

H-2B dependents are not permitted to work in the U.S.
Requirement of labor certification, a time consuming process
The job must be temporary in nature

While only a few H-2B Visas are issued each year, the visa is nonetheless useful. The H-2B visa enables US businesses and agents to fill temporary needs with nonimmigrant workers. Many individuals unable to obtain an O or P Visa may apply for this visa. However, medical school graduates are not allowed to apply for an H-2B visa.

Conclusion: The H2B visa is a great way for people who want to live in the US temporarily, work in seasonal and fun jobs. However, while the visa allows employers to fill their temporary needs, it is a complicated and, sometimes, drawn out process.