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e-CFR data is current as of August 6, 2020

Title 20Chapter VPart 655Subpart A → Subject Group


Title 20: Employees' Benefits
PART 655—TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED STATES
Subpart A—Labor Certification Process for Temporary Non-Agricultural Employment in the United States (H-2B Workers)


Prefiling Procedures

§655.10   Determination of prevailing wage for temporary labor certification purposes.

(a) Offered wage. The employer must advertise the position to all potential workers at a wage at least equal to the prevailing wage obtained from the NPWC, or the Federal, State or local minimum wage, whichever is highest. The employer must offer and pay this wage (or higher) to both its H-2B workers and its workers in corresponding employment. The issuance of a PWD under this section does not permit an employer to pay a wage lower than the highest wage required by any applicable Federal, State or local law.

(b) Determinations. Prevailing wages shall be determined as follows:

(1) Except as provided in paragraph (i) of this section, if the job opportunity is covered by a collective bargaining agreement (CBA) that was negotiated at arms' length between the union and the employer, the wage rate set forth in the CBA is considered as not adversely affecting the wages of U.S. workers, that is, it is considered the “prevailing wage” for labor certification purposes.

(2) If the job opportunity is not covered by a CBA, the prevailing wage for labor certification purposes shall be the arithmetic mean of the wages of workers similarly employed in the area of intended employment using the wage component of the BLS Occupational Employment Statistics Survey (OES), unless the employer provides a survey acceptable to OFLC under paragraph (f) of this section.

(c) Request for PWD. (1) An employer must request and receive a PWD from the NPWC before filing the job order with the SWA.

(2) The PWD must be valid on the date the job order is posted.

(d) Multiple worksites. If the job opportunity involves multiple worksites within an area of intended employment and different prevailing wage rates exist for the opportunity within the area of intended employment, the prevailing wage is the highest applicable wage among all the worksites.

(e) NPWC action. The NPWC will provide the PWD, indicate the source, and return the Application for Prevailing Wage Determination (ETA Form 9141) with its endorsement to the employer.

(f) Employer-provided survey. (1) If the job opportunity is not covered by a CBA, or by a professional sports league's rules or regulations, the NPWC will consider a survey provided by the employer in making a Prevailing Wage Determination only if the employer submission demonstrates that the survey falls into one of the following categories:

(i) The survey was independently conducted and issued by a state, including any state agency, state college, or state university;

(ii) The survey is submitted for a geographic area where the OES does not collect data, or in a geographic area where the OES provides an arithmetic mean only at a national level for workers employed in the SOC;

(iii)(A) The job opportunity is not included within an occupational classification of the SOC system; or

(B) The job opportunity is within an occupational classification of the SOC system designated as an “all other” classification.

(2) The survey must provide the arithmetic mean of the wages of all workers similarly employed in the area of intended employment, except that if the survey provides a median but does not provide an arithmetic mean, the prevailing wage applicable to the employer's job opportunity shall be the median of the wages of workers similarly employed in the area of intended employment.

(3) Notwithstanding paragraph (f)(2) of this section, the geographic area surveyed may be expanded beyond the area of intended employment, but only as necessary to meet the requirements of paragraph (f)(4)(ii) of this section. Any geographic expansion beyond the area of intended employment must include only those geographic areas that are contiguous to the area of intended employment.

(4) In each case where the employer submits a survey under paragraph (f)(1) of this section, the employer must submit, concurrently with the ETA Form 9141, a completed Form ETA-9165 containing specific information about the survey methodology, including such items as sample size and source, sample selection procedures, and survey job descriptions, to allow a determination of the adequacy of the data provided and validity of the statistical methodology used in conducting the survey. In addition, the information provided by the employer must include the attestation that:

(i) The surveyor either made a reasonable, good faith attempt to contact all employers employing workers in the occupation and geographic area surveyed or conducted a randomized sampling of such employers;

(ii) The survey includes wage data from at least 30 workers and three employers;

(iii) If the survey is submitted under paragraph (f)(1)(ii) or (iii) of this section, the collection was administered by a bona fide third party. The following are not bona fide third parties under this rule: Any H-2B employer or any H-2B employer's agent, representative, or attorney;

(iv) The survey was conducted across industries that employ workers in the occupation; and

(v) The wage reported in the survey includes all types of pay, consistent with Form ETA-9165.

(5) The survey must be based upon recently collected data: The survey must be the most current edition of the survey and must be based on wages paid not more than 24 months before the date the survey is submitted for consideration.

(g) Review of employer-provided surveys. (1) If the NPWC finds an employer-provided survey not to be acceptable, the NPWC shall inform the employer in writing of the reasons the survey was not accepted.

(2) The employer, after receiving notification that the survey it provided for consideration is not acceptable, may request review under §655.13.

(h) Validity period. The NPWC must specify the validity period of the prevailing wage, which in no event may be more than 365 days and no less than 90 days from the date that the determination is issued.

(i) Professional athletes. In computing the prevailing wage for a professional athlete when the job opportunity is covered by professional sports league rules or regulations, the wage set forth in those rules or regulations is considered the prevailing wage.

(j) Retention of documentation. The employer must retain the PWD for 3 years from the date of issuance or the date of a final determination on the Application for Temporary Employment Certification, whichever is later, and submit it to a CO if requested by a Notice of Deficiency, described in §655.31, or audit, as described in §655.70, or to a WHD representative during a WHD investigation.

(k) Guam. The requirements of this section apply to any request filed for an H-2B job opportunity on Guam, subject to the transfer of authority to set the prevailing wage for a job opportunity on Guam to DOL in Title 8 of the Code of Federal Regulations.

[80 FR 24108, Apr. 29, 2015, as amended at 80 FR 24184, Apr. 29, 2015]

§655.11   Registration of H-2B employers.

All employers, including job contractors, that desire to hire H-2B workers must establish their need for services or labor is temporary by filing an H-2B Registration with the Chicago NPC.

(a) Registration filing. An employer must file an H-2B Registration. The H-2B Registration must be accompanied by documentation evidencing:

(1) The number of positions that will be sought in the first year of registration;

(2) The time period of need for the workers requested;

(3) That the nature of the employer's need for the services or labor to be performed is non-agricultural and temporary, and is justified as either a one-time occurrence, a seasonal need, a peakload need, or an intermittent need, as defined by DHS regulations and §655.6 (or in the case of job contractors, a seasonal need or one-time occurrence); and

(4) For job contractors, the job contractor's own seasonal need or one-time occurrence, such as through the provision of payroll records.

(b) Original signature. The H-2B Registration must bear the original signature of the employer (and that of the employer's attorney or agent if applicable). If and when the H-2B Registration is permitted to be filed electronically, the employer will satisfy this requirement by signing the H-2B Registration as directed by the CO.

(c) Timeliness of registration filing. A completed request for an H-2B Registration must be received by no less than 120 calendar days and no more than 150 calendar days before the employer's date of need, except where the employer submits the H-2B Registration in support of an emergency filing under §655.17.

(d) Temporary need. (1) The employer must establish that its need for non-agricultural services or labor is temporary, regardless of whether the underlying job is permanent or temporary, consistent with DHS regulations. A job contractor must also demonstrate through documentation its own seasonal need or one-time occurrence.

(2) The employer's need will be assessed in accordance with the definitions provided by the Secretary of Homeland Security and as further defined in §655.6.

(e) NPC review. The CO will review the H-2B Registration and its accompanying documentation for completeness and make a determination based on the following factors:

(1) The job classification and duties qualify as non-agricultural;

(2) The employer's need for the services or labor to be performed is temporary in nature, and for job contractors, demonstration of the job contractor's own seasonal need or one-time occurrence;

(3) The number of worker positions and period of need are justified; and

(4) The request represents a bona fide job opportunity.

(f) Mailing and postmark requirements. Any notice or request pertaining to an H-2B Registration sent by the CO to an employer requiring a response will be mailed to the address provided on the H-2B Registration using methods to assure next day delivery, including electronic mail. The employer's response to the notice or request must be mailed using methods to assure next day delivery, including electronic mail, and be sent by the due date specified by the CO or by the next business day if the due date falls on a Saturday, Sunday or Federal holiday.

(g) Request for information (RFI). If the CO determines the H-2B Registration cannot be approved, the CO will issue an RFI. The RFI will be issued within 7 business days of the CO's receipt of the H-2B Registration. The RFI will:

(1) State the reason(s) why the H-2B Registration cannot be approved and what supplemental information or documentation is needed to correct the deficiencies;

(2) Specify a date, no later than 7 business days from the date the RFI is issued, by which the supplemental information or documentation must be sent by the employer;

(3) State that, upon receipt of a response to the RFI, the CO will review the H-2B Registration as well as any supplemental information and documentation and issue a Notice of Decision on the H-2B Registration. The CO may, at his or her discretion, issue one or more additional RFIs before issuing a Notice of Decision on the H-2B Registration; and

(4) State that failure to comply with an RFI, including not responding in a timely manner or not providing all required documentation within the specified timeframe, will result in a denial of the H-2B Registration.

(h) Notice of Decision. The CO will notify the employer in writing of the final decision on the H-2B Registration.

(1) Approved H-2B Registration. If the H-2B Registration is approved, the CO will send a Notice of Decision to the employer, and a copy to the employer's attorney or agent, if applicable. The Notice of Decision will notify the employer that it is eligible to seek H-2B workers in the occupational classification for the anticipated number of positions and period of need stated on the approved H-2B Registration. The CO may approve the H-2B Registration for a period of up to 3 consecutive years.

(2) Denied H-2B Registration. If the H-2B Registration is denied, the CO will send a Notice of Decision to the employer, and a copy to the employer's attorney or agent, if applicable. The Notice of Decision will:

(i) State the reason(s) why the H-2B Registration is denied;

(ii) Offer the employer an opportunity to request administrative review under §655.61 within 10 business days from the date the Notice of Decision is issued and state that if the employer does not request administrative review within that period the denial is final.

(i) Retention of documents. All employers filing an H-2B Registration are required to retain any documents and records not otherwise submitted proving compliance with this subpart. Such records and documents must be retained for a period of 3 years from the date of certification of the last Application for Temporary Employment Certification supported by the H-2B Registration, if approved, or 3 years from the date the decision is issued if the H-2B Registration is denied or 3 years from the day the Department of Labor receives written notification from the employer withdrawing its pending H-2B Registration.

(j) Transition period. In order to allow OFLC to make the necessary changes to its program operations to accommodate the new registration process, OFLC will announce in the Federal Register a separate transition period for the registration process, and until that time, will continue to adjudicate temporary need during the processing of applications.

§655.12   Use of registration of H-2B employers.

(a) Upon approval of the H-2B Registration, the employer is authorized for the specified period of up to 3 consecutive years from the date the H-2B Registration is approved to file an Application for Temporary Employment Certification, unless:

(1) The number of workers to be employed has increased by more than 20 percent (or 50 percent for employers requesting fewer than 10 workers) from the initial year;

(2) The dates of need for the job opportunity have changed by more than a total of 30 calendar days from the initial year for the entire period of need;

(3) The nature of the job classification and/or duties has materially changed; or

(4) The temporary nature of the employer's need for services or labor to be performed has materially changed.

(b) If any of the changes in paragraphs (a)(1) through (4) of this section apply, the employer must file a new H-2B Registration in accordance with §655.11.

(c) The H-2B Registration may not be transferred from one employer to another unless the employer to which it is transferred is a successor in interest to the employer to which it was issued.

§655.13   Review of PWDs.

(a) Request for review of PWDs. Any employer desiring review of a PWD must make a written request for such review to the NPWC Director within 7 business days from the date the PWD is issued. The request for review must clearly identify the PWD for which review is sought; set forth the particular grounds for the request; and include any materials submitted to the NPWC for purposes of securing the PWD.

(b) NPWC review. Upon the receipt of the written request for review, the NPWC Director will review the employer's request and accompanying documentation, including any supplementary material submitted by the employer, and after review shall issue a Final Determination letter; that letter may:

(1) Affirm the PWD issued by the NPWC; or

(2) Modify the PWD.

(c) Request for review by BALCA. Any employer desiring review of the NPWC Director's decision on a PWD must make a written request for review of the determination by BALCA within 10 business days from the date the Final Determination letter is issued.

(1) The request for BALCA review must be in writing and addressed to the NPWC Director who made the final determinations. Upon receipt of a request for BALCA review, the NPWC will prepare an appeal file and submit it to BALCA.

(2) The request for review, statements, briefs, and other submissions of the parties must contain only legal arguments and may refer to only the evidence that was within the record upon which the decision on the PWD was based.

(3) BALCA will handle appeals in accordance with §655.61.

§655.14   [Reserved]

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