73 Fed. Reg. 29942 (May 22, 2008)

On May 22, 2008, the Department of Labor published a proposed rule “Labor Certification Process and Enforcement: Temporary Employment in Occupations Other Than Agriculture or Registered Nursing in the United States (H-2B Workers), and Other Technical Changes.

While the rule primarily focuses on amending the regulations to modernize the H-2B program for temporary non-agricultural employment of aliens in the United States, the “other technical changes” include a number of provisions changing the way prevailing wage determinations are done for PERM, H-1B, H-1B1, and E-3.

The proposed rule would transfer prevailing wage determination functions from local State Workforce Agencies (SWAs) to the appropriate National Processing Center (NPC). While employers would still place a job order with the SWA serving the area of intended employment, the employer would submit a new form "Prevailing Wage Determination Request" (PWDR) to the appropriate NPC to obtain a PWD.

For LCA, the proposed rule would amend 20 C.F.R. 655.731(a)-(b), replacing "SWA" with "(ETA/Chicago) NPC," and add a reference to INA 212(t), but would not make any other substantive changes.

For labor certification under PERM, the proposed rule would amend 20 C.F.R. 656.40(a)-(c), (g)-(i) and 656.41(a)-(d), replacing "SWA" with "(ETA/Atlanta) NPC," and add a reference to INA 212(t). In addition, the proposed rule would allow employers to apply PWD to subsequent labor certifications:

(i) Frequent users. The Secretary will issue guidance pursuant to which employers receiving a PWD from an NPC may directly obtain a wage determination to apply to a subsequent application, when the wage is for the same occupation, skill level, and area of intended employment. In no case may the wage rate the employer provides the NPC be lower than the highest wage required by any applicable Federal, state, or local law.

Public comments to the rule are due by July 7, 2008.

Send a comment or submission to DOL through the online submission form.

Report your thoughts and concerns to NAFSA through IssueNet: Report an Issue.