Wage Methodology for the Temporary Non-agricultural Employment H-2B Program, 3452-3484 [2011-1117]

Agencies

• Employment and Training Administration
• DEPARTMENT OF LABOR

[Federal Register Volume 76, Number 12 (Wednesday, January 19, 2011)]
[Rules and Regulations]
[Pages 3452-3484]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-1117]



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Part VI





Department of Labor





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Employment and Training Administration



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20 CFR Part 655



Wage Methodology for the Temporary Non-agricultural Employment H-2B 
Program; Final Rule

Federal Register / Vol. 76, No. 12 / Wednesday, January 19, 2011 / 
Rules and Regulations

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DEPARTMENT OF LABOR

Employment and Training Administration

20 CFR Part 655

RIN 1205-AB61


Wage Methodology for the Temporary Non-agricultural Employment H-
2B Program

AGENCY: Employment and Training Administration, Labor.

ACTION: Final rule; request for comment on specific issues.

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SUMMARY: The Department of Labor (the Department or DOL) is amending 
its regulations governing the certification for the employment of 
nonimmigrant workers in temporary or seasonal non-agricultural 
employment. This Final Rule revises the methodology by which the 
Department calculates the prevailing wages to be paid to H-2B workers 
and United States (U.S.) workers recruited in connection with a 
temporary labor certification for use in petitioning the Department of 
Homeland Security (DHS) to employ a nonimmigrant worker in H-2B status.

DATES: This Final Rule is effective January 1, 2012. Comments should be 
submitted by March 21, 2011.

FOR FURTHER INFORMATION CONTACT: William L. Carlson, Ph.D., 
Administrator, Office of Foreign Labor Certification, ETA, U.S. 
Department of Labor, 200 Constitution Avenue, NW., Room C-4312, 
Washington, DC 20210; Telephone (202) 693-3010 (this is not a toll-free 
number). Individuals with hearing or speech impairments may access the 
telephone number above via TTY by calling the toll-free Federal 
Information Relay Service at 1-800-877-8339.

SUPPLEMENTARY INFORMATION:

I. Revisions to 20 CFR 655.10

A. The Department's Role in the H-2B Program

    As provided by section 101(a)(15)(H)(ii)(b) of the Immigration and 
Nationality Act (INA or Act) (8 U.S.C. 1101(a)(15)(H)(ii)(b)), the H-2B 
visa classification for non-agricultural temporary workers is available 
to a foreign worker ``having a residence in a foreign country which he 
has no intention of abandoning who is coming temporarily to the United 
States to perform other [than agricultural] temporary service or labor 
if unemployed persons capable of performing such service or labor 
cannot be found in this country.'' This visa status is granted by U.S. 
Citizenship and Immigration Services (USCIS), an agency within DHS, 
under its regulations at 8 CFR 214.2(h)(6) et seq. Section 214(c)(1) of 
the INA requires DHS to consult with appropriate agencies before 
approving an H-2B visa petition. 8 U.S.C. 1184(c)(1). That consultation 
occurs according to a USCIS regulatory requirement that an employer 
first obtain a temporary labor certification from the Secretary of 
Labor (the Secretary) establishing that U.S. workers capable of 
performing the services or labor are not available, and that the 
employment of the foreign worker(s) will not adversely affect the wages 
and working conditions of similarly employed U.S. workers. 8 CFR 
214.2(h)(6).
    The Secretary's responsibility for the H-2B program is carried out 
by two agencies within the Department. Applications for labor 
certification are processed by the Office of Foreign Labor 
Certification (OFLC) in the Employment and Training Administration 
(ETA), the agency to which the Secretary has delegated those 
responsibilities described in the USCIS H-2B regulations. Enforcement 
of the attestations and assurances made by employers in H-2B 
applications for labor certification is conducted by the Wage and Hour 
Division (WHD) under enforcement authority delegated to it by DHS. 8 
U.S.C. 1184(c)(14)(B).

B. The Determination of the Prevailing Wage

    To comply with its obligations under the program, an employer must 
pay the H-2B workers hired in connection with the application a wage 
that will not adversely affect the wages of U.S. workers similarly 
employed. The Department's H-2B procedures have always provided that 
adverse effect is prevented by requiring H-2B employers to offer and 
pay at least the prevailing wage to the H-2B workers and those U.S. 
workers recruited in connection with the job opportunity. To facilitate 
compliance with this requirement, the Department has established a 
process for providing to an employer a prevailing wage for the job 
opportunity for which certification is being sought. From the outset of 
the H-2B program, the Department directed that the same prevailing wage 
procedures be used for the permanent, H-1B, and H-2B programs. Although 
the Department did not promulgate a separate prevailing wage 
methodology until 1995, General Administration Letter (GAL) 10-84, 
``Procedures for Temporary Labor Certifications in Non Agricultural 
Occupations'' (April 23, 1984) provided guidance to the States on the 
administration of the H-2 nonagricultural program (a predecessor of the 
H-2B program) requiring the States to determine the prevailing wage in 
accordance with regulations for the permanent program at 20 CFR 656.40. 
In 1995, the Department issued separate prevailing wage guidance 
through GAL 4-95, ``Interim Prevailing Wage Policy for Nonagricultural 
Immigration Programs'' (May 18, 1995), Attachment I,\1\ and again in 
1998, through GAL 2-98 ``Prevailing Wage Policy for Nonagricultural 
Immigration Programs'' (November 30, 1998) that continued to extend the 
provisions of Sec.  656.40 to the H-2B program. Under the two GALs, 
payment of the rates determined under the Davis-Bacon Act (DBA), 40 
U.S.C. 276a et seq., 29 CFR part 1, or the McNamara-O'Hara Service 
Contract Act (SCA), 41 U.S.C. 351 et seq., was mandatory for H-2B 
occupations for which such wage determinations existed. Starting in 
1998, in the absence of SCA or DBA wage rates, prevailing wage 
determinations were based on the Occupational Employment Statistics 
wage survey (OES), compiled by the Bureau of Labor Statistics (BLS). 
The OES wage survey produces employment and wage estimates for about 
800 occupations and is based upon wage data covering full-time and 
part-time workers who are given monetary compensation for their labor 
or services. The OES survey is published annually and features data 
broken out both by geographic area and industry. The wage estimates in 
the survey are made available at the national, State and metropolitan 
and nonmetropolitan area levels. The OES survey directly collects a 
wage rate for all occupations defined by the Office of Management and 
Budget's (OMB's) occupational classification system, the Standard 
Occupational Classification (SOC) system code. Employers, however, have 
been able since at least 1995 to submit private wage surveys that met 
Department standards.
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    \1\ See https://wdr.doleta.gov/directives.
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    Both the 1995 and the 1998 GALs provided that DOL would issue 
prevailing wage determinations at two levels, entry-level and 
experienced. At that time, there were not many H-2B program users, and 
new prevailing wage procedures were designed primarily to address the 
needs of the permanent and H-1B programs which were dominated by job 
opportunities in higher skilled occupations. There was considerable 
desire on the part of H-1B and permanent program users to have the 
Department create a multi-tiered wage

[[Page 3453]]

structure to reflect the largely self-evident proposition that workers 
in occupations that require sophisticated skills and training receive 
higher wages based on those skills. Since the OES survey captures no 
information about actual skills or responsibilities of the workers 
whose wages are being reported, the two-tier wage structure introduced 
in 1998 was based on the assumption that the mean wage of the lowest 
paid one-third of the workers surveyed in each occupation could provide 
a surrogate for the entry-level wage. The Department did not conduct 
any meaningful economic analysis to test its validity and, most 
significantly, it did not consider whether assumptions about wages and 
skill levels for higher skilled occupations might be less valid when 
applied to lower skilled occupations. In December 2004, the Department 
revised its regulation governing the permanent program. 69 FR 77326, 
Dec. 27, 2004. These revisions included changes to 20 CFR 656.40 which 
governed the procedures for determining the prevailing wage. In 
particular, these revisions eliminated the requirement that SCA/DBA 
wage determinations be treated as the prevailing wage where such 
determinations existed. The regulation provided that use of available 
SCA/DBA wage rates would be only at the option of the employer.
    The preamble to the PERM regulation also discussed Congress's 
enactment of the H-1B Visa Reform Act in the Consolidated 
Appropriations Act of 2005, Public Law 108-447, Div. J., Title IV, 
section 423, which amended section 212(p)(4) of the INA, 8 U.S.C. 
1182(p)(4), relating to the H-1B visa program. This legislation 
mandated that the Department issue prevailing wages at four levels when 
the prevailing wages were based upon a government survey. The 
legislation mandated how the four levels were to be calculated by 
mathematically manipulating the existing two level wages. Section 
656.40 of 20 CFR, the regulation implementing the H-1B Visa Reform Act, 
only specifically referenced prevailing wages established for the PERM 
and H-1B programs.
    Soon after the enactment of the new regulations, the Department 
issued comprehensive guidance on prevailing wage determinations. 
Following the practice in place since 1984, this guidance also applied 
to the H-2B program. ETA Prevailing Wage Determination Policy Guidance, 
Non-agricultural Immigration Programs, May 2005, revised November 
2009.\2\ The guidance included the use of the four-tier wage structure 
and the elimination of the mandatory application of the SCA/DBA wage 
determinations.
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    \2\ https://www.foreignlaborcert.doleta.gov/pdf/NPWHC_Guidance_Revised_11_2009.pdf.
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    In 2008, the Department issued the regulations that currently 
govern the H-2B temporary worker program. 73 FR 78020, Dec. 19, 2008 
(the 2008 Final Rule). The 2008 Final Rule addressed some aspects of 
the 2005 prevailing wage guidance. See 20 CFR 655.10(b)(2). However, 
the Department did not propose or seek comments on the methodology for 
determining prevailing wages.
    In early 2009, a lawsuit was filed challenging various aspects of 
the Department's H-2B procedures included in the 2008 Final Rule; among 
the issues raised was the use of the four-tier wage structure in the H-
2B program and the optional use of SCA and DBA wages. Comit[eacute] de 
Apoyo a los Trabajadores Agricolas (CATA) v. Solis, Civil No. 2:09-cv-
240-LP, 2010 WL 3431761 (E.D. Pa.). In its August 30, 2010 decision, 
the court ruled that the Department had violated the Administrative 
Procedure Act (APA) in failing to adequately explain its reasoning for 
using skill levels as part of the H-2B prevailing wage determinations, 
and failing to consider comments relating to the choice of appropriate 
data sets in deciding to rely on OES data rather than SCA and DBA in 
setting the prevailing wage rates. The court ordered the Department to 
``promulgate new rules concerning the calculation of the prevailing 
wage rate in the H-2B program that are in compliance with the 
Administrative Procedure Act no later than 120 days from the date of 
this order.''
    This rulemaking represents the Department's efforts to address both 
substantive and procedural concerns about prevailing wages in the H-2B 
program. The Department promulgated and published an NPRM in accordance 
with the court's order, allowing a 30-day comment period. 75 FR 61578, 
Oct. 5, 2010. Several commenters requested that the Department provide 
additional time to comment on the proposed rule; the Department 
requested additional time from the court and was granted until January 
18, 2011, to promulgate a Final Rule. The Department, in turn, provided 
the public an additional 8 days for comment on the NPRM.
    The NPRM proposed to eliminate the use of the four-tier wage 
structure for the H-2B program in favor of the mean OES wage for each 
occupational category. It also provided that available SCA/DBA wage 
determination rates for those occupations for which H-2B certification 
is sought, or collective bargaining agreement (CBA) wages, if such an 
agreement exists, would be used if they reflected higher wages than the 
OES wage. The NPRM also proposed to eliminate the use of employer-
provided surveys in the H-2B program. After a thorough review of the 
comments, the Department has decided to finalize these changes.

C. Overview of Comments Received

    The Department received almost 300 comments in response to the 
proposed rule. We have determined that 251 of these comments were 
completely unique, 8 were duplicates, and 39 were a form letter or 
based on a form letter. Commenters represented a broad range of 
constituencies for the H-2B program, including individual employers, 
worker advocacy groups, labor organizations, small business advocates, 
business associations, law firms, government agencies, including the 
Chief Counsel for the Office of Advocacy of the Small Business 
Association (Chief Counsel for Advocacy, SBA),\3\ Members of Congress 
and Congressional Committees, and various interested members of the 
public. These comments, both supporting and opposing the proposed 
regulation, are discussed in greater detail below.
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    \3\ The comment submitted by the Chief Counsel for Advocacy, SBA 
reflected not only that agency's concerns but also those expressed 
by employers at a roundtable hosted by the SBA on October 20, 2010.
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    Some of the comments received were outside the scope of the 
proposed rule. The NPRM proposed a methodology for determining the 
prevailing wage for use in the H-2B program. Many comments went well 
beyond that issue, addressing matters such as comprehensive immigration 
reform, general immigration-related concerns, unemployment-related 
issues, the incorporation or continuation of special procedures in the 
H-2B program, enforcement, future regulatory actions, and various 
regulatory sections under Subpart A that are not part of this 
rulemaking. Comments submitted before the comment period began or after 
the comment period closed were not considered.
    Among those comments the Department deemed out of scope were 
several comments received about the use of the wage methodology within 
the Territory of Guam. A labor certification from the Secretary is not 
required for H-

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2B employment on Guam.\4\ Instead, an employer seeking a foreign labor 
certification on Guam is required to request and receive a 
certification from the Governor of Guam. 8 CFR 214.2(h)(6)(iii). The 
Department did not propose in the NPRM to revise the certification 
process on Guam; therefore all comments received about Guam have been 
deemed out of scope.
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    \4\ The Secretary of Labor is required, for certain military 
workforce projects, to consult with the Governor of Guam in a 
certification to the Secretary of Defense regarding the adequacy of 
recruitment of U.S. workers. Public Law 111-84, Subtitle C, 123 
Stat. 2672, section 2834 (October 28, 2009). This is a separate 
certification from that required to be given to the employer by the 
Governor of Guam under 8 CFR 214.2(h)(6)(iii).
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    Additionally, several commenters asserted that the Interim 
Regulatory Flexibility Analysis (IRFA) in the NPRM failed to consider 
increased payroll costs associated with the wage increases for other 
workers who would be paid the prevailing wage. This rule is limited to 
the determination of methodology for the payment of a prevailing wage 
to H-2B workers and U.S. workers hired in response to the H-2B required 
recruitment. Any extension of the requirements to pay the prevailing 
wage to others is outside the scope of this rule.

II. Discussion of Comments Received

A. The Significance of Setting the Prevailing Wage at the Appropriate 
Level

    The Department's role in the H-2B temporary nonimmigrant program is 
to certify to DHS that: (1) there are not sufficient U.S. workers 
available who are capable of performing the temporary services or labor 
at the time of filing of the petition for the H-2B classification and 
at the place where the foreign worker is to perform the work; and (2) 
the employment of the foreign worker will not adversely impact the 
wages and working conditions of U.S. workers similarly employed. 20 CFR 
655.1(b), 8 CFR 214.2(h)(6)(iii), and 8 CFR 214.2(h)(6)(iv). These two 
findings address the statutory requirement that H-2B workers be 
admitted only if no unemployed persons capable of performing such 
service or labor in this country are available. 8 U.S.C. 
1101(a)(15)(h)(ii)(b).
    Historically, requiring an H-2B employer to pay the prevailing wage 
for the locality in which the worker will be employed has been the 
cornerstone of the required labor market test. The Department has 
consistently held that payment of the prevailing wage ensures that 
there is no adverse effect on the wages of similarly employed U.S. 
workers and provides meaningful access to these job opportunities.
    The Department proposed a prevailing wage methodology that will 
result in wages that more closely reflect the average of wages paid to 
similarly employed workers in the area of intended employment. In doing 
so, the Department ensures full compliance with the statutory intent of 
the H-2B program and that unemployed U.S. workers capable of performing 
the jobs for which H-2B workers are sought will have meaningful access 
to job opportunities.
    Several commenters claimed that regardless of the changes the 
Department makes to the wage methodology used in the H-2B program, H-2B 
employers will not be able to find interested U.S. workers for these 
job opportunities. The Department's objective in this rulemaking is not 
to guarantee that U.S. workers will apply for these positions, but to 
provide a prevailing wage that does not adversely affect the wages of 
U.S. workers and provides them the opportunity for jobs sought by H-2B 
employers at competitive wages.
    One commenter agreed that setting the appropriate prevailing wage 
for the position is central to testing the labor market. This commenter 
argued that U.S. workers cannot be expected to accept employment under 
conditions below the established minimum levels, citing examples of 
high unemployment rates in industries in which employers tend to hire 
H-2B workers, including the construction industry, as well as high 
unemployment rates among specific groups of vulnerable low-wage 
workers: Youth, Hispanics, and African Americans. The same commenter 
indicated that a prevailing wage rate that ensures no adverse effect on 
wages and working conditions of U.S. workers is needed and that an 
increase in hourly wages for some H-2B guest workers and U.S. workers 
recruited and hired as part of the labor certification process is 
consistent with the INA's statutory intent.
    Another commenter indicated that the primary goal of any change in 
the wage methodology is to ensure that there are no persons in the U.S. 
capable of performing the advertised unskilled labor. This commenter 
observed that if the wages are set high enough, U.S. workers will be 
interested in the work, but if the wages are set too low U.S. labor 
will not be interested. This commenter also noted that where there are 
genuine labor shortages, employers would normally attract workers by 
offering (among other things) higher wages, which would increase wages 
for U.S. workers.
    The Department agrees with the need to ensure there is no adverse 
effect by offering a wage that would be acceptable to U.S. workers. By 
proposing a prevailing wage methodology that will pay wages that more 
closely reflect the average of wages paid in any occupation, the 
Department creates conditions under which unemployed U.S. workers will 
have access to job opportunities that they would in fact seek out, 
rather than those in which the pay is too low. Testifying before the 
House Subcommittee on Immigration, Citizenship, Refugees, Border 
Security, and International Law in April 2008, Ross Eisenbrey, Vice 
President of the Economic Policy Institute, cited CPS data identified 
by Jin Dai and Jared Bernstein that examined labor market indicators 
for seven H-2B occupations that constituted the majority of H-2B 
employment. Annual wage data for these occupations had increased at a 
slower rate than has those in other occupations.\5\ The testimony 
points to the fact that economic theory suggests that employers who 
experience shortages of labor compete for available labor by increasing 
wages; however, under the H-2B program, if positions are not filled by 
U.S. workers at the wage offered by the employer, the employer may 
sidestep this effect by petitioning the Department for permission to 
bring in foreign workers at that lower wage.
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    \5\ H-2B Program: Hearing Before the Subcommittee on 
Immigration, Citizenship, Refugees, Border Security, and 
International Law of the H. Comm. On the Judiciary, 110th Cong. 5 
(2008) (statement of Ross Eisenbrey, Vice President, Economic Policy 
Institute).
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    Some commenters questioned the appropriateness of the Department's 
proposal, asserting that increasing wages of H-2B and U.S. workers 
recruited in the program is not synonymous with protecting the wages of 
U.S. workers from adverse effect. The DHS regulations explicitly 
require that certifications be granted only if they do not result in 
adverse impact on the wages and working conditions of U.S. workers. 
Since the inception of the program, the Department has determined that 
the best way to fulfill its mandate to protect wages is to require 
employers to pay a prevailing wage. In all labor certification 
programs, except for the unique requirements of the H-2A program, the 
Department has used a prevailing wage, however defined or calculated, 
as a means of protecting U.S. workers against adverse effect--as the 
INA requires in most programs in which the Department has

[[Page 3455]]

a role. The Department proposed no change to this longstanding approach 
and this Final Rule does not make any such change.
    Another commenter questioned why the Department, while asserting 
that the current wage methodology currently results in an adverse 
effect on U.S. workers, continues to certify H-2B labor applications as 
not adversely affecting U.S. workers, when the Department clearly 
states its belief that it does. The Department's role in all its 
immigration programs is to ensure that there is no adverse effect on 
the wages (and working conditions) of similarly employed U.S. workers 
by requiring the payment of an appropriate prevailing wage. The 
Department's concern that the current prevailing wage methodology may 
not be adequate to accomplish this task, together with the court's 
decision, was the impetus for the development of the NPRM in which the 
Department provided notice of a proposed change to the methodology, and 
solicited comments in order to fully examine the issue and determine 
the most appropriate course for meeting its obligation. The Department 
must continue to meet its obligations under the existing regulations 
until such time as a new regulation is promulgated in accordance with 
APA requirements. Discontinuing the issuance of prevailing wage 
determinations would abrogate the Department's obligation to administer 
the H-2B labor certification program.

B. Highest of All Applicable Wages

    The Department proposed that the prevailing wage would be the 
highest of three wage rates: The wage established under an applicable 
CBA; the rate established under the DBA or SCA for that occupation in 
the area of intended employment; and the arithmetic mean wage rate 
established by the OES for that occupation in the area of intended 
employment. Several commenters approved of this approach, noting that 
this methodology better protects U.S. workers and is far more likely to 
ensure that jobs for which employers petition for H-2B workers go 
unfilled by able U.S. workers because there are no such workers 
available, not because employers are offering wages far below the rates 
normally paid and expected by domestic workers in the area of intended 
employment. Other commenters objected to this approach, asserting that 
the various sources of prevailing wage rates the Department proposed to 
consider are not of equal validity.
    The Department has concluded that the approach in the NPRM is most 
consistent with its responsibility under the applicable DHS regulations 
to grant certifications that avoid adverse effect on wages. The mandate 
to prevent adverse effect has existed for many years in all of the 
immigration programs administered by the Department and, except for the 
unique requirements of the H-2A program, has always been implemented by 
a requirement that employers offer and pay the prevailing wage. In 
situations where there is a SCA or DBA wage determination or 
collectively bargained wage rate in addition to the OES determination, 
it is compatible with our responsibility to avoid adverse effect to 
mandate that the employer pay the higher of these determinations. Such 
determinations are based on real wages being paid to workers in these 
areas for the same kind of work for which H-2B workers are sought--in 
other words, the labor pool of those U.S. workers the would-be H-2B 
employer should be seeking. By requiring the highest wage among these 
available, validated sources, the Department is guaranteeing that the 
jobs are offered to available workers at wages that do not create an 
adverse effect.
1. Collective Bargaining Agreements
    The Department proposed retaining from the 2008 Final Rule the 
inclusion of a collective bargaining wage as the prevailing wage if the 
job opportunity is covered by an agreement that was negotiated at arms' 
length between the collective bargaining unit and the employer. Several 
commenters supported this proposal, but suggested that the Department 
go further and require that whenever a CBA covers workers in a 
particular geographic region and a specific occupational 
classification, the wage rate negotiated in the CBA should apply to all 
employers in the region who wish to hire H-2B workers in the same 
occupation classification, even those that are not signatory to the CBA 
or who have no collective bargaining unit in that occupation.
    A CBA is a contractual agreement negotiated at arms' length between 
more or less equal parties. The provisions of a CBA reflect a 
negotiation process and a series of concessions between the parties to 
the agreement that would not apply to other parties not involved in the 
negotiations. The negotiation of a CBA also involves agreement on a 
range of issues, wages, working conditions, work rules and many others, 
all of which combine to lead to a complete agreement, only one of whose 
elements involves wages. For example, one set of negotiating parties 
may agree to a lower wage in return for a guarantee of job security 
while another set may agree to higher wages at a greater risk of job 
cuts. Thus, the Department is unwilling to use a collectively-bargained 
wage outside the workplace for which it has been negotiated unless that 
wage has been determined to be prevailing through the SCA, DBA, or OES 
wage determination process.
    By contrast, another commenter objected to the use of a wage higher 
than a CBA wage in an employment situation in which a CBA applies, 
noting that where an employer is subject to a CBA, paying a wage other 
than the CBA scale rate may violate the terms of the agreement and have 
ramifications under contract and labor law. However, the Department 
must consistently use the prevailing wage rate under the H-2B program 
in order to ensure that U.S. workers have meaningful access to these 
positions and do not experience wage depression as a result of 
employers hiring foreign workers at less than prevailing wages. A CBA 
rate that had fallen below the minimum wage would not be valid. 
Similarly, a CBA rate below the prevailing wage would not be a valid 
wage for purposes of the H-2B program.
2. Use of SCA and DBA Wages
    The Department also proposed to include consideration of the Davis-
Bacon Act (DBA), 40 U.S.C. 3142 et seq., or the McNamara-O'Hara Service 
Contract Act (SCA), 41 U.S.C. 351 et seq., wage rate for occupations 
for which wage rates have been determined under either of the two Acts 
for the area of intended employment. After considering numerous 
comments, the Department adopts this proposal in the Final Rule.
    An employer association questioned the validity of SCA wage 
determinations, claiming that the data used for SCA wage determinations 
is inconsistent and that the use of Federal employee wage data 
invalidates SCA wage rates. Similarly, two associations representing 
employers expressed concerns about the methodology and accuracy of DBA 
surveys. The commenters cited a 1979 report from the General Accounting 
Office (now the Government Accountability Office, GAO), 1996 
Congressional testimony from the GAO, and a 2004 report from the 
Department's Office of Inspector General (OIG). One commenter suggested 
that DBA surveys take years to be distributed, collected, calculated 
and completed. Two of the commenters noted that survey completion is 
voluntary and the results may therefore be biased. Several commenters 
(an individual, two employer associations, and an employer) expressed 
concern

[[Page 3456]]

that DBA wage rates are based on union wages, and therefore are not 
reflective of the market.
    After consideration, the Department concludes that the commenters' 
concerns with the consistency, timeliness, and validity of SCA and DBA 
wage determinations are unfounded. The highly localized wages in the 
SCA present the best market information with which to ensure that those 
workers similarly employed are not being adversely affected. To help 
ensure reliability, SCA wage determinations are now reviewed on a 
yearly basis. Where a single rate is paid to a majority (50 percent or 
more) of the workers in a class of service employees engaged in similar 
work in a particular locality, that rate is determined to be 
prevailing. Where a single rate does not prevail, statistical measures 
of central tendency reflected in BLS surveys are considered when 
issuing SCA wage determinations. The BLS conducts two surveys that 
produce locality based wage data: The National Compensation Survey 
(NCS), which is the primary data source for SCA wage determinations, 
and the OES survey, which serves as either a supplement to NCS data or 
as the primary data source for areas or classifications not surveyed by 
NCS. See 29 CFR 4.50-51.
    The NCS is conducted by personal visit. Consideration is paid to 
supplemental sources, such as the General Schedule locality pay 
schedules, Non-Appropriated Fund (NAF) surveys, surveys conducted by 
states, and the Federal Wage System Schedules for the comparable 
geographic area, which indicates what Federal employees would be paid 
if they worked in the SCA contract work positions. See 29 CFR 4.50. 
While the Department rarely consults these Federal employee pay systems 
in determining H-2B wage rates, the use of these data, contrary to the 
commenter's claims, would likely not inflate wage rates: March 2009 NCS 
data reported by BLS and used by the Federal Office of Personnel 
Management and the Federal Salary Council showed that Federal employees 
make an average of 22 percent less than their counterparts in the 
private sector.\6\
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    \6\ ``Annual Report of the President's Pay Agent'', December 7, 
2009. https://www.opm.gov/oca/payagent/2009/2009PayAgentReport.pdf.
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    Prevailing wages under the DBA are established for the 
corresponding classes of laborers and mechanics employed on projects of 
a character similar to the contract work in the civil subdivision 
(usually a county) of the State in which the work is to be performed. 
40 U.S.C. 3142(b). Department regulations establish that the prevailing 
wage is the wage paid to the majority (greater than 50 percent) of the 
workers in the classification on similar projects in the area during 
the relevant period. 29 CFR 1.2(a)(1). If the same wage is not paid to 
a majority of workers in the classification, then the prevailing wage 
is the weighted average of the wage rates paid to workers in that 
classification.
    The prevailing wage rates found in the WHD Administrator's 
determinations are based on survey data derived from the information 
that responding contractors and other interested parties provide. 29 
CFR1.1-1.7. The wage surveys collect information from all interested 
parties including unions, contractors, and associations. If 
insufficient wage data is received for a particular county, then the 
calculation will be expanded to a group of surrounding counties.
    The reports relied on by commenters who expressed concern about the 
accuracy of DBA wages are more than 6 years old and not reflective of 
the current status of the wage determinations. The Department has 
successfully implemented significant improvements to the DBA wage 
determination process in the last 7 years. As noted in the preamble to 
the proposed rule, WHD's DBA survey program has undergone a significant 
re-engineering effort, resulting in a greatly improved and timely 
prevailing wage rate determination process. By working with the Census 
Bureau at the U.S. Department of Commerce, the Department has 
successfully expedited the overall survey process. The Census Bureau 
now mails the data collection forms to employers and other interested 
parties and, upon their return, scans the completed form and loads the 
data into the electronic survey database. Additionally, the Department 
has significantly improved its timeframe for reviewing submitted survey 
data. As a result of these and other improvements, the Department 
recently published a statewide survey in less than 18 months. The 
Department anticipates that this will be the norm for future surveys. 
To increase survey participation and improve the accuracy of published 
survey data, the Department has developed newly enhanced post-
collection activity, including more follow-up phone calls and on-site 
clarification and verification reviews.
    The surveys used to determine DBA wage rates are sent to all 
relevant employers within the locality as well as to all other 
interested parties, including labor organizations, contractors, and 
employers associations. No one source of wage data is determinative. 
The Department notes that while the DBA survey, like every other wage 
survey, is voluntary, and there is no statutory requirement that 
employers or labor organizations submit their wage data, the Department 
actively encourages participation; however, there is no statutory 
requirement that employers or labor organizations must submit their 
wage data. In order to mitigate any potential bias, the Department has 
taken and continues to take actions to improve completion rates, get 
the most representative sample possible, and ensure the accuracy of 
this data. First, it has expanded community outreach efforts and held 
additional public conferences. These efforts help responders to better 
understand the survey process and to appreciate the importance of 
survey participation. Additionally, an on-line response tool has been 
introduced, giving recipients the opportunity to submit data 
electronically. The Department has also engaged an outside contractor 
to randomly audit responses to improve accuracy and further mitigate 
any bias. In the rare event of misrepresentation in a survey response, 
fines and imprisonment can be pursued. Finally, the Department 
identifies the most fair and appropriate geographical statistical areas 
by relying on Census jurisdictions and OMB-defined Metropolitan 
Statistical Areas (MSAs). The Department believes these measures ensure 
that the DBA wages are reflective of the labor market.
    In calculating DBA wage rates, WHD follows several important and 
well-established policies. First, in order for a classification and 
rate to prevail, the minimum craft sufficiency standard must be met. 
Long-standing WHD procedures provide that wage data for a particular 
classification generally must be received for at least three workers 
employed by two contractors in order for a wage rate to be published 
for a classification. Second, in compiling data for building and 
residential wage determinations, WHD cannot use data from Federal or 
federally-assisted projects ``unless it is determined that there is 
insufficient wage data to determine the prevailing wages in the absence 
of such data.'' 29 CFR 1.3(d). Third, the county is the appropriate 
geographic unit for data collection, although data may be derived from 
groups of counties in some situations, as described below. 29 CFR 
1.7(a), (b). Finally, data received from metropolitan and rural 
counties cannot be combined. 29 CFR 1.7(b).

[[Page 3457]]

    In accordance with these principles, WHD first attempts to 
calculate a prevailing wage based on private project survey data at the 
county level. See Mistick Construction, ARB No. 04-051, slip op. at 3 
(Mar. 31, 2006). If there is insufficient private survey data for a 
particular county, then WHD considers any available survey data from 
Federal projects. If the combined Federal and non-federal survey data 
received from a particular county is still insufficient to establish a 
prevailing wage rate for a classification, then data from surrounding 
counties may be used, provided that data from metropolitan and rural 
counties are not combined. See 29 CFR 1.7(b); see also Mistick 
Construction, ARB No. 04-051, slip op. at 3 (Mar. 31, 2006).
    In considering survey data from surrounding counties, WHD first 
expands its calculation from the county alone to a group of counties. 
For metropolitan counties, WHD expands the county data to all of the 
other counties located in the same MSA, as determined by OMB. If 
private survey data from the established county group is still 
insufficient, then WHD will include Federal project data from all 
counties in the group. Rural county groups, which are defined by WHD, 
are made up of contiguous non-metropolitan counties with similar wage 
patterns.
    OMB states that the ``general concept of a metropolitan statistical 
area is that of an area containing a large population nucleus and 
adjacent communities that have a high degree of integration with that 
nucleus.'' 2010 Standards for Delineating Metropolitan and Micropolitan 
Statistical Areas, 75 FR 37,246, Jun. 28, 2010. The purpose of 
establishing MSAs is to provide ``a nationally consistent set of 
delineations for collecting, tabulating, and publishing Federal 
statistics for geographic areas.'' Id. OMB publishes and maintains 
official MSA lists, based primarily on decennial Census data.
    WHD strictly relies upon OMB's MSA determinations in deciding which 
surrounding counties constitute a metro county ``group'' for DBA 
purposes, and WHD therefore does not reconfigure MSA groups. By using 
objective and well-established county group designations set by OMB, 
WHD avoids injecting bias and uncertainty into its wage determination 
process.
    If both private and Federal data for an established county group 
are still insufficient to determine a prevailing wage rate, then WHD 
may expand to a ``supergroup'' of counties (either rural or 
metropolitan) or even to the statewide level; the expansion stops when 
sufficiently standard data have been attained for the craft. WHD only 
expands data to these levels, however, for classifications that have 
been designated as ``key'' crafts. A list of ``key'' crafts can be 
found in WHD's Prevailing Wage Resource Book. See U.S. Department of 
Labor, Prevailing Wage Resource Book (July 2009), Davis-Bacon Surveys 
(Tab 12) at 3, available at https://www.dol.gov/whd/recovery/pwrb/toc.htm. For non-key crafts, data are not expanded beyond the county 
group level.
    One employer argued that using DBA wage rates would bypass the 
requirements of the National Labor Relations Act (NLRA). A DBA 
prevailing wage determination represents an accurate prevailing wage 
rate available for similar workers in a particular area of employment. 
Where a collectively-bargained wage rate prevails in a classification 
on similar projects in the area during the relevant period, then and 
only then is the resulting DBA prevailing wage the collectively-
bargained wage rate. This does not, however, subject an employer to the 
collective bargaining agreement upon which the underlying wage rate is 
based. Rather, the rate is interpreted as a reflection of the 
prevailing wage in the area of employment.
    Several commenters suggested that the Department consider SCA and 
DBA rates in its prevailing wage determinations only when the 
applicant's H-2B workers would work on projects subject to the SCA or 
DBA. SCA and DBA wage rates provide a reliable prevailing wage for 
certain occupations within specific localities. The commenters' 
concerns that an SCA or DBA wage is a ``government wage'' are 
unfounded: the resulting wage closely approximates the prevailing wage 
for a particular occupation within a particular locality. Since SCA and 
DBA calculations incorporate workers and projects outside of government 
contracts, these rates are an appropriate source of prevailing wages.
    Some commenters requested that the SCA and DBA wage determinations 
not be consulted as prevailing wage sources for any occupations not 
covered by the SCA and DBA surveys. As indicated above, when 
determining prevailing wages, the Department will not consider either 
source unless it includes data appropriate for the actual tasks, 
duties, and activities the worker will perform in the area of intended 
employment, as described by the employer in the H-2B application.
    Similarly, a number of landscaping employers commented that the 
proposed wage sources (SCA, DBA, and OES) generalize the prevailing 
wage determination process and do not consider particular job 
classifications in areas of intended employment. However, the SCA, DBA, 
and OES wage rates are specific to occupations and areas of intended 
employment. National Prevailing Wage Center (NPWC) staff will match the 
job duties listed on the Application for Prevailing Wage Determination 
with the appropriate occupational definition contained in the O*Net 
Occupational Outlook Handbook, the SCA Dictionary of Occupations, or 
specific Davis-Bacon wage determinations. Only if an appropriate match 
can be made will the source be considered in determining the H-2B 
prevailing wage.
    Several submissions from various commenters noted that two 
different agencies within the Department collect wage data: BLS 
publishes OES, among other wage surveys, while WHD publishes SCA and 
DBA prevailing wage rates. Two of these commenters recommended that the 
Department consolidate wage calculations into fewer surveys, while 
others recommended that the Department give all of the responsibility 
for wage determinations to a single agency. The Department believes 
that OES survey data is distinct enough from SCA wage determinations 
and DBA surveys that all three should be retained, and that all are 
appropriate for use in the H-2B program. OES data encompasses 
occupations outside the scope of the SCA and DBA, while in certain 
instances the nature of government-contracted service work and 
construction projects requires SCA and DBA determinations to take into 
account more detailed information about how the work is performed 
(e.g., DBA wage rates reflect the work performed by various crafts 
determined by area practice).
    Two employer associations and two employers commented that any 
increase in H-2B wage rates would be arbitrary. One commenter 
elaborated, explaining that because the methodologies used to produce 
the SCA, DBA, and OES wage rates and data are different, none can be 
truly accurate. As explained above, the SCA, DBA, and OES methodologies 
use the best information available to establish prevailing wage rates 
for specialized occupations within specific occupational categories. 
OES data has been used historically as the basis for prevailing wage 
determinations in the H-2B and other DOL immigration programs, while 
SCA and DBA rates were used in the H-2B program before 2005. 
Furthermore, the three wage rates are not fundamentally different: all 
are derived from employer survey data.

[[Page 3458]]

    A few commenters believed incorrectly that the Department's use of 
SCA and DBA wage rates would require employers to provide fringe 
benefits or to pay workers the cash equivalent of such benefits. The 
Acts require contractors performing service or construction work, 
respectively, on covered Federal contracts to furnish, in addition to 
the prevailing hourly rate of pay, fringe benefits found prevailing in 
the locality (or the cash equivalent thereof).\7\ SCA and DBA wage 
determinations reflect two figures--wages and benefits. For purposes of 
the H-2B program, however, the SCA or DBA prevailing wage is only the 
wage component of the wage determination. This Final Rule therefore 
does not require the payment of fringe benefits; such benefits would, 
however, otherwise be required if the employer's work involves a 
contract which is covered by one of the Acts.
---------------------------------------------------------------------------

    \7\ Section 2(a)(2) of the McNamara O'Hara Service Contract Act, 
41 U.S.C. 351(a)(2); 40 U.S.C. 3141(2)(B).
---------------------------------------------------------------------------

    Numerous commenters urged the Department to include fringe benefits 
in all H-2B prevailing wage determinations. These commenters assert 
that not including fringe benefits would ``give employers an incentive 
to hire H-2B workers instead of U.S. workers'' in order to avoid 
additional labor costs, and would thus undermine the requirement that 
H-2B visas be issued only if no qualified U.S. workers are available. 
The Department recognizes these commenters' concerns, particularly for 
H-2B positions that have been certified at an SCA or DBA wage rate. 
However, the Department historically has not required the payment of 
fringe benefits to H-2B workers, even before 2005, when SCA and DBA 
wage rates were mandatory for occupations where such wage 
determinations existed. See 75 FR 61578, 61579 (Oct. 5, 2010) (``Wage 
Methodology for the Temporary Non-Agricultural Employment H-2B 
Program'' Proposed Rule). In addition, no data exists to allow adequate 
computation and monetization of fringe benefits over all the 
occupations and locations covered by the H-2B program. Therefore, given 
the Department's historical practice, and given that the Department 
cannot currently fully estimate the economic impact of requiring fringe 
benefits for H-2B positions, the Department will not require fringe 
benefit payments to H-2B workers, regardless of the source of the 
prevailing wage.\8\
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    \8\ For projects covered by DBA or SCA, employers are 
responsible for paying fringe benefits as required by those laws 
regardless of whether the workers are domestic or H-2B workers.
---------------------------------------------------------------------------

3. The Elimination of the Four-tier Wage Structure
    In the NPRM, the Department proposed to eliminate the use of the 
four-tier wage structure and implement a single prevailing wage rate 
based on the arithmetic mean of the OES wage data for the job 
classification in the area of intended employment. The NPRM cited a 
number of reasons why the four tiers did not establish an adequate 
prevailing wage. After thorough consideration of the public comments, 
the Department has decided that the proposed elimination of the use of 
the four-tier wage structure is appropriate.
    The Department continues to believe that the OES wage data is an 
appropriate wage data available in the absence of a higher CBA, SCA, or 
DBA wage. The OES wage survey is among the largest continuous 
statistical survey programs of the Federal Government. BLS produces the 
survey materials and selects the nonfarm establishments to be surveyed 
using the list of establishments maintained by State Workforce Agencies 
(SWAs) for unemployment insurance purposes. The OES collects data from 
over 1 million establishments. Salary levels based on geographic areas 
are available at the national and State levels and for certain 
territories in which statistical validity can be ascertained, including 
the District of Columbia, Guam, Puerto Rico, and the U.S. Virgin 
Islands. Salary information is also made available at the metropolitan 
and nonmetropolitan area levels within a State. Wages for the OES 
survey are straight-time, gross pay, exclusive of premium pay. Base 
rate, cost-of-living allowances, guaranteed pay, hazardous duty pay, 
incentive pay including commissions and production bonuses, tips, and 
on-call pay are included. The features described above are unique to 
the OES survey, which is a comprehensive, statistically valid, and 
useable wage reference, and it is for these reasons that the survey is 
also used in other foreign labor certification programs administered by 
the Department, including the H-1B and PERM programs. The frequency and 
precision of the data collected, as well as the comprehensive nature of 
the occupations for which such data is collected, make it an 
appropriate data source for determining applicable wages across the 
range of occupations found in the H-2B program.
a. The Four-Tier Wage Structure is Not Suitable for Unskilled Jobs
    The Department received a number of comments in support of its 
proposal to eliminate the four-tier wage structure. Three Congressional 
commenters supported the proposal. One indicated that the four-tier 
wage structure is inappropriate for the H-2B program because the 
program involves relatively low-skilled occupations with few 
differences in skill or experience. Another commenter, a Congressional 
subcommittee, indicated that the structure is contrary to the 
Department's obligation to ensure that H-2B employers offer wages that 
do not adversely affect the wages of the U.S. workforce. The third 
Congressional commenter argued that a tiered wage structure in the H-2B 
program undercuts Congressional intent to protect the wages of both 
U.S. and foreign workers.
    Additional commenters supported the Department's decision to 
eliminate wage tiers, noting that the use of skill level wages in low-
skill H-2B jobs causes an adverse effect because all workers in those 
job categories perform the same job duties and, in the commenters' 
view, compete with one another for job openings, regardless of their 
cumulative experience levels. One commenter noted that even if 
experience in the job normally results in a higher wage level, the 
current methodology permits employers to pay the H-2B workers entry-
level wages, thus placing U.S. workers seeking the same job openings at 
a disadvantage because their experience is not compensated.
    The Department also received a number of comments opposing the 
elimination of the four-tier wage structure; numerous commenters, 
including the Chief Counsel for Advocacy, SBA, offered arguments that 
wage tiers appropriately reflect the level of skill, education, 
experience and other requirements of the job. Several commenters 
opposed the elimination of the four-tier wage structure on the grounds 
that the skill levels allow employers to differentiate between 
employees based on their skills and level of experience. Some of these 
commenters expressed concern that the change to the arithmetic mean for 
all H-2B wages would result in an inappropriate averaging of the wages 
of entry-level and more experienced workers. Other commenters asserted 
that the use of a single wage would inflate the prevailing wages of 
entry-level workers and deflate prevailing wages of highly-experienced 
workers because it would fail to take into

[[Page 3459]]

consideration wage differentiation factors such as supervisory duties, 
responsibilities, and seniority/tenure or experience, particularly for 
skilled positions in certain industries. One commenter indicated that 
the wage determination methodology would average in wages for higher 
skilled workers, and therefore contradicts the intent for establishing 
the H-2B program as one for the recruitment of unskilled workers.
    A few commenters argued against the elimination of skill levels, 
and presented an alternative in which employers could craft job 
descriptions in such a way as to couple the higher arithmetic mean-
based wage with a requirement for more experience.\9\ Several 
commenters expressed concern that the Department's proposal does not 
specify that employers will be able to increase their experience 
requirements as a result of the increased wages and requested that if 
the Department uses the OES arithmetic mean, H-2B employer-applicants 
should be allowed to specify the minimum experience requirements that 
are associated with the new wage.
---------------------------------------------------------------------------

    \9\ The Chief Counsel for Advocacy, SBA's comment reflected the 
suggestion of several businesses on this alternative.
---------------------------------------------------------------------------

    One commenter argued that the skills in the H-2B program may not be 
a matter of educational degrees or detailed training, but rather 
properly and efficiently performing the job. This commenter asserted 
that employers typically reward H-2B workers with higher wages and 
benefits based on job performance, and that raising the wages in the 
program to the mean would eliminate the employer's ability to properly 
manage and reward those employees.
    Other commenters indicated that the elimination of the four-tier 
wage structure will not maintain fair wage calculations to ensure U.S. 
workers are not adversely affected by the employment of H-2B workers 
because the current system ensures unskilled and skilled workers have 
access to H-2B job positions according to their level of experience, 
education, and supervision required to perform the job duties. One of 
these commenters further claimed that because many H-2B workers are in 
low-skilled or unskilled positions, wage rates from a lower tier should 
correlate with lower skills and be close to the appropriate wage such 
that H-2B workers earn wages at similar levels as the wages of domestic 
workers.
    Several commenters representing the ski industry conceded that 
although not all positions in their industry reflect skill levels, 
their industry is unique in that certain positions, particularly those 
for ski and snowboard instructors, require certification and/or 
accreditation which reflects specific levels of skill and experience 
consistent with those established for the industry nationally and 
internationally. These commenters indicated that establishing a 
prevailing wage rate based on a single overall arithmetic mean fails to 
account for skill progressions required of the ski instructor 
positions. In addition, one commenter in the construction industry 
associated the wage tiers with important skills and knowledge 
pertaining to safety requirements and programs, noting that Level II 
and Level III workers are necessary to maintain workers' safety.
    As discussed elsewhere in this Final Rule, the Department's 
obligation to administer the H-2B program requires that the prevailing 
wage which is offered and paid in the program reflect the minimum 
requirements of the position. This requirement reflects the 
Department's obligations to avoid adverse effect on the wages of 
workers and enable meaningful access to job opportunities for U.S. 
workers. Because the Department has determined that the majority of H-
2B jobs reflect no or few skill differentials, the appropriate 
prevailing wage an employer must offer and pay, absent a higher CBA, 
SCA, or DBA wage, is the arithmetic mean of the OES wage data of 
workers who are similarly employed in the area of intended employment. 
Where an employer's job opportunity requires skills beyond those 
minimally required for the position (which may include but are not 
limited to additional certifications based on experience, or safety 
accreditations), the employer is at liberty to offer and pay to its 
workers in excess of the prevailing wage to account for the additional 
skills or experience which the employer requires.
    One commenter noted that the assumption that H-2B workers fill the 
lower skilled and lower paid positions and that the higher skilled and 
higher paid positions are taken by U.S. workers leads to a conclusion 
that no adverse effect exists because the H-2B workforce simply fills a 
predictable labor shortage permitting U.S workers to consistently fill 
higher skilled complementary positions.
    As discussed in the NPRM, the Department has found that almost all 
jobs for which employers seek H-2B workers require little, if any, 
skill--an assertion with which few commenters disagreed. H-2B 
disclosure data from Fiscal Year (FY) 2007 to 2009 demonstrates that 
most of the jobs included in the top five industries for which the 
greatest annual numbers of H-2B workers were certified--construction; 
amusement, gambling and recreation; landscaping services; janitorial 
services; and food services and drinking places--require minimal skill 
to perform, according to every standardized source available to the 
Department, such as the SOC, O*NET and the Occupational Outlook 
Handbook. These jobs include, but are not limited to, landscaper 
laborer, housekeeping cleaner, construction worker, forestry worker, 
and amusement park worker, which make up the majority of occupations 
certified in those years, all of which require less than 2 years of 
experience to perform, if that.\10\ This prevalence of job 
opportunities in low-skilled categories is generally reflected in the 
H-2B employer applications. These jobs have typically resulted in a 
Level I wage determination, which is lower than the average wage paid 
to similarly employed workers in job classifications in non-H-2B jobs.
---------------------------------------------------------------------------

    \10\ The Executive Order (E.O.) 12866 analysis below analyzes FY 
2007 through 2009 disclosure data that reflects the numbers of jobs 
certified in these occupations; the top five industries for which 
the average annual number of H-2B workers were certified are 
Construction--30,242; Amusement, Gambling, and Recreation--14,041; 
Landscaping Services--78,027; Janitorial Services--30,902; and Food 
Services and Drinking Places--22,948.
---------------------------------------------------------------------------

    Under the Department's 2005 Prevailing Wage Guidance, the 
determination of an appropriate wage level is dependent upon the duties 
and requirements of the job opportunity as described by the employer on 
the ``Application for Prevailing Wage Determination,'' ETA Form 9141. 
The Department applies a standard analysis of the job position (found 
in the 2005 Prevailing Wage Guidance) to determine the appropriate wage 
level. In doing so, the Department compares the employer's job 
requirements with those typical of the job classification. A Level I 
\11\ wage is based on a determination that the job position described 
by the employer does not deviate, or only minimally deviates, from the 
typical

[[Page 3460]]

minimum requirements of the corresponding SOC-based job classification 
contained in O*NET, including the specific Job Zone. A Job Zone 
reference indicates the level of skill, education, experience and/or 
preparation typically required to perform the job, and ranges from one 
(for which little or no preparation is needed) to five (in which 
extensive education, training, and preparation are required to 
adequately perform the job duties at the entry-level). For example, one 
of the most requested H-2B job classifications, landscaping and 
groundskeeping worker, is classified as falling within O*NET Job Zone 
One.\12\ All of the other frequently represented positions in the 
program: janitors and cleaners, housekeepers, construction laborers, 
and amusement and recreation attendants, also are categorized within 
Job Zone One.
---------------------------------------------------------------------------

    \11\ Level I wage rates under the Prevailing Wage Guidance are 
typically assigned to job offers for beginning level employees who 
have 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. See https://www.foreignlaborcert.doleta.gov/pdf/NPWHC_Guidance_Revised_11_2009.pdf.
    \12\ For a full description of this job classification, see: 
https://online.onetcenter.org/link/summary/37-3011.00.
---------------------------------------------------------------------------

    The notion that the four wage tiers have a meaningful relationship 
to skill, as expressed by many commenters including the Chief Counsel 
for Advocacy, SBA, represents a misunderstanding of the way in which 
the Department calculates the four tiers. The Department does not 
collect data associated with skill levels, but instead collects data 
across the job spectrum. The Department approximates skill levels from 
that generalized data, not because the data can be disaggregated by 
skill level, but because it is required to assign a value to four skill 
levels, in accordance with the formula set forth at section 212(p)(4) 
of the INA. The formula is artificial, designed to approximate 
arbitrary skill levels and has a skewing effect when applied to the 
wage rates applicable to typical H-2B jobs, in which there are fewer 
skill differentials. The four wage levels currently used by the 
Department are calculated by applying a statutory mathematical formula 
to the wage distribution corresponding to a particular occupational 
classification in the area of intended employment. The Level I wage is 
established by taking the arithmetic mean of the bottom one-third of 
the wage distribution; the Level IV wage rate is determined by 
establishing the arithmetic mean of the top two