The Department of Labor (DOL) requires that businesses that hire workers under the H‑2B program—America’s temporary worker program for seasonal nonagricultural jobs—pay a minimum wage known as the “prevailing wage.” This requirement substantially reduces the number of requests for H‑2B workers. Yet Congress has never explicitly required employers to pay the prevailing wage to temporary nonagricultural workers, and agencies who invented the rule did so initially without publicly explaining it, making its origins mysterious.

What history is known is lengthy, complex, and bizarre. Not only does the rule not exist in statute, DOL itself never shows up in the statute either. Stranger still, despite the H‑2B program tracing its origins to a 1952 law, no “prevailing wage” requirement existed in any formal regulation from any government agency for more than half a century. In 1952, the government proposed a prevailing wage rule, but then dropped it from the final regulations. Two years later, it formally revoked DOL’s regulatory authority over the nonagricultural program, yet the agencies continued to act as if this authority still existed for nearly a decade before the regulation was restored.

For 56 years, DOL determined the H‑2B prevailing wage entirely under informal guidance documents, many of which are not publicly available. Even when the documents were public, they often did not provide enough detail to understand how the wages were determined. In 1998, for example, it implemented a skills-based methodology for the prevailing wage it never explained publicly in any form for more than a decade. Amazingly, for several years in the 2010s, DOL issued prevailing wage determinations using this methodology in violation to court orders to stop.

Even now, DOL still calculates the prevailing wage under a methodology that directly contradicts the plain language of a 2004 law restricting the methodology that DOL can use for prevailing wage determinations for any visa program. Its justifications for using the prevailing wage are not obvious logical outgrowths from any part of the law and contradict congressional intent.

Overview of H‑2B Prevailing Wage History

Congress created the H‑2 program, the predecessor to the H‑2B program, in the Immigration and Nationality Act of 1952.[1] The Department of Labor (DOL) mandates the prevailing wage as part of the H‑2B labor certification process, a process that Congress never expressly created in the statute.[2] The original final Immigration and Naturalization Service (INS) regulations in 1952 ordering the creation of DOL’s H‑2 labor certification dropped a prevailing wage requirement proposed in the draft regulations.[3]

DOL failed to create any regulations at all for the H‑2 nonagricultural program in the 1950s.[4] Two years later, INS revoked the regulation requiring any kind of DOL involvement in the H‑2 program.[5] Yet DOL and INS continued to operate as if the regulation was still in force[6] until INS reintroduced the labor certification regulation in 1964.[7]

In 1966, INS required DOL to consider the effect of H‑2 nonagricultural workers on U.S. workers’ wages,[8] borrowing language from an unrelated statute enacted in 1965 to govern labor certifications for prospective permanent residents.[9] Incredibly, it came up with an entirely different process for H‑2 agricultural worker wages, despite the then-identical statutes. In 1968—16 years after the program’s creation—DOL created its first-ever regulations for H‑2 nonagricultural labor certifications, which also required considering the effect on U.S. worker’s wages but did not explicitly mention the prevailing wage requirement or how it would be administered.[10]

From the 1952 to 2008, DOL H‑2 nonagricultural prevailing wage calculations were determined by administrative guidance documents that were either not public or not widely available. At least since 1984 — [11] and probably since 1967 — [12] DOL required the same process for determining the prevailing wage for permanent labor certifications—again despite completely different statutes. Its methodology relied mostly on Davis-Bacon or Service Contract Act (DBA-SCA) wages based on DOL surveys where “prevailing” was primarily defined as 50 percent or, if not 50 percent, 30 percent of wages being the same identical rate in the area—effectively union wages.[13]

In 1986, Congress divided the H‑2 program into the H‑2B nonagricultural and H‑2A agricultural programs.[14] Only the H‑2A program had a requirement to consider the effects on the wages of U.S. workers,[15] yet INS and DOL continued to treat the statutes the same.[16]

Since probably 1977, whenever DBA-SCA wage was not available in the area, DOL required at least 95 percent of the average wage for jobs requiring “substantially similar skills” using surveys conducted by State Employment Service Agencies (SESA) or other published surveys.[17] In 1995, DOL explicitly required SESA surveys to provide for two wage levels based on skills.[18] In 1998, it decided that the Bureau of Labor Statistics (BLS) Occupational Employment Statistics (OES) surveys provided better data than SESA surveys and requested BLS create two skill levels mathematically, using average wages for the bottom third of the occupation as the lower skill level.[19] Yet DOL never publicly acknowledged this request or methodology until at least 2009.[20] Partly as a result of this change, H‑2B usage grew rapidly.[21]

In 2004, Congress mandated the creation of four wage levels based on education, skills, or experience whenever DOL uses “a governmental survey to determine the prevailing wage.”[22] DOL initially proposed H‑2B regulations to implement this rule, even while strangely asserting that the new law did not apply to the H‑2B program.[23] But before it finalized them, it issued a guidance document that implemented the rule, eliminated the mandatory use of DBA-SCA wages, and required that 100 percent, rather than 95 percent, of the average at a given skill level be paid.[24]

In 2008—56 years after the original H‑2 nonagricultural program was created—DOL finalized its first-ever prevailing wage regulation, but it refused to respond to comments on the wage methodology because it asserted it was just formalizing the existing 2005 guidance.[25] H‑2B labor certification applications peaked in 2007.[26] The refusal to consider comments led to legal challenge, culminating in a 2010 district court decision that vacated DOL’s wage regulation, finding that the 2004 law did not apply to the H‑2B program and that DOL could not lawfully consider H‑2B skill levels.[27]

In 2011, DOL finalized a regulation that eliminated wage levels, reimposed DBA-SCA wages, and banned employer-provided surveys.[28] Congress repeatedly blocked implementation of the rule,[29] and so DOL continued to use the court-vacated 2008 rule until 2013 when, after another court decision,[30] it issued a new rule that only eliminated the use of the four OES wage levels.[31] Employer-provided surveys using skill levels continued to be accepted until late 2014.[32] After yet another court decision,[33] DOL issued a rule in 2015 that created the current structure: 100 percent of the OES average wage for the occupation without skill levels, employer-provided surveys only where the OES wage is unavailable or using a state issued survey, and no use of DBA-SCA wages.[34] Later that year, Congress passed a law that required DOL to allow private wage surveys in any H‑2B prevailing wage determination (without actually requiring the prevailing wage). 

Early Pre-H-2B History

Congress created the H‑2 classification—the predecessor to the H‑2B—in the Immigration and Nationality Act (INA) of 1952. The original H‑2 encompassed both agricultural (now known as H‑2A) and nonagricultural temporary low-skilled jobs (now known as H‑2B). It defined an H‑2 worker as any alien “who is coming temporarily to the United States to perform other temporary services or labor, if unemployed persons capable of performing such service or labor cannot be found in this country.”[35]

“Other services or labor” was defined in contrast to the H‑1 category’s “labor or services of an exceptional nature” requiring “distinguished merit or ability.” In other words, H‑2 covered all low-skilled workers—on farms or otherwise. The INA further provided that the “question of importing any alien as a nonimmigrant under section 101 (a) (15) (H) … shall be determined by the Attorney General, after consultation with appropriate agencies of the Government, upon petition of the importing employer.”[36] DOL is not mentioned in the statute. The House report accompanying the legislation stated that the H visa’s purpose was:

to admit temporarily certain alien workers, industrial, agricultural, or otherwise, for the purpose of alleviating labor shortages as they exist or may develop in certain areas or certain branches of American productive enterprises, particularly in periods of intensified production.[37]

The Department of Justice’s Immigration and Naturalization Service (INS)—the predecessor to today’s immigration agencies under the Department of Homeland Security (DHS)—proposed regulations implementing the H‑2 program that would have required certification by a labor union that an H‑2 job is not “in a position to supply persons ready, able and willing at the then prevailing wage to perform labor or services of a like nature.”[38] This was the only reference to the “prevailing wage” in the proposed regulations, and the final regulation dropped the provision. Instead, it retained the following mandates:

If the alien is to enter under clause (ii) of [INA section 101(a)(15)(H)], there shall be… a clearance order bearing a statement from the United States Employment Service, that (i) qualified workers of the kind proposed to be imported are not available within the United States, and (ii) the Employment Service policies have been observed.[39]

Though it initially started in 1907 to help immigrants find jobs upon arrival, the U.S. Employment Service became a component of DOL that coordinates a system of State Employment Service Agencies, now called State Workforce Agencies (SWAs), that help unemployed Americans find jobs.[40] The 1952 INS regulations also specified that Mexican agricultural workers could enter as H‑2s in 1953, but DOL could veto any workers if it found sufficient U.S. workers or if they were “adversely affecting” the wages of U.S. workers—requirements enforced under the separate Bracero guest worker program at the time.[41]

After 1953, Mexican agricultural workers were excluded from the H‑2 program until the separate Bracero program expired in 1965.[42] In 1953, DOL promulgated Employment Service regulations for all agricultural workers—foreign or otherwise—that required employers who recruit through the Employment Service to offer the local prevailing wage.[43] In 1953, INS redrafted its H visa regulations to state that a clearance order was only required from DOL, “if requested by” INS.[44]

In 1954, the INS rewrote its H‑2 regulations again and dropped any recruitment or wage requirements or reference to DOL.[45] In 1958, it again rewrote the section, still excluding all DOL rules.[46] Nonetheless, INS never removed the instructions to seek DOL approval and follow Employment Service policies from its employer petition Form I‑129B,[47] and in 1960, DOL twice provided notices in the Federal Register claiming authority under INS regulations to certify that these two requirements were met, despite the asserted authority no longer existing in the cited regulations.[48] In 1963, DOL explained its H‑2 policies in congressional testimony as follows:

If an employer desires workers, the first thing he does is place an order with a local Employment Service office for domestic workers.… The Employment Service policies require that reasonable efforts to recruit have been made not only by the Employment Service but by the employer himself. They must recruit at the prevailing wage rate, and they must … offer conditions of employment that are prevailing with regard to transportation.[49]

Yet DOL cited as the basis of these requirements only its H‑2 rules pertaining only to agricultural workers.[50]

The End of the Bracero Program

Expecting the expiration of the Bracero guest worker program at the end of 1964, the INS reissued its H‑2 regulations with additional evidentiary requirements:

There shall be submitted a clearance order from the United States Employment Service concerning the availability of like labor in the United States which shall state that its policies have been observed.… A statement shall be furnished describing in detail the situation or conditions which make it necessary to bring the alien to the United States, and whether the need is temporary, seasonal, or permanent; if temporary or seasonal, whether it is expected to be recurrent.[51]

DOL subsequently responded to Bracero’s end by updating its regulations for H‑2 foreign agricultural workers, including the mandating of the recently invented Adverse Effect Wage Rate—an intentionally inflated prevailing wage.[52] Following the Immigration Act of 1965, INS revised its H‑2 regulations in 1966 to state that DOL must certify that qualified U.S. workers “are not available and that the employment of the beneficiary will not adversely affect the wages and working conditions of workers in the United States similarly employed.”[53]

This certification requirement is the same as the one adopted by Congress for permanent immigrant visa petitions in the 1965 act.[54] Congress had evolved this standard from the earlier 1952 standard, which had similar language, but prohibited visas or entry of immigrants only if DOL certified that they would, in fact, “adversely affect” U.S. workers.[55] In 1965, Congress flipped the presumption to prohibit immigrants coming to work until DOL certified that they would not “adversely affect” U.S. workers. Even though Congress made no changes to H visa requirements in the 1965 act, INS still adopted the same standard for the H‑2 visa.

In 1967, DOL revised its regulations to create uniform procedures for determining the prevailing wage for permanent labor certification requests.[56] DOL used the wage determinations or the wage formula borrowed from the Davis-Bacon or Service Contract Act (DBA-SCA), which require that government contractors pay the local “prevailing wage” for certain occupations. DOL defined “prevailing” to mean the rate paid to 50 percent or more workers or, if no such rate exists, the rate paid to 30 percent or more, or the average in the area. Whenever a single rate prevails among such large shares of workers, it is almost always the union wage.[57] To establish DBA-SCA wages, DOL conducted surveys that were routinely attacked as statistically inaccurate and biased in favor of easier-to-obtain union wages.[58]

Following this action, DOL finally introduced its first regulations specifically for H‑2 nonagricultural workers in 1968.[59] These required a finding that “qualified persons in the United States are not available and that the terms of employment will not adversely affect the wages and working conditions of workers in the United States similarly employed.”[60] Again, these are the same standards as for the permanent labor certification required by the Immigration Act of 1965. The agency would consider “the employer’s attempts to recruit workers and the appropriateness of the wages and working conditions offered.”[61] The prevailing wage requirement that was likely still being enforced was not mentioned. These new regulations were imposed to prevent Mexicans from jumping from the cancelled Bracero program to the H‑2 program.

In 1977, DOL updated its prevailing wage determination for permanent labor certification to require the use of DBA-SCA wages only if actually required in the occupation and area.[62] Otherwise, it required the offer be at least 95 percent of the average wage in the area and occupation so long as the job required “substantially similar level of skills”.[63]

In 1978, in regulations primarily focused on agricultural workers, DOL added additional general language applicable to both programs that spelled out how it would implement the prevailing wage:

Before any factual determination can be made concerning the availability of U.S. workers to perform particular job opportunities, two steps must be taken. First, the minimum level of wages, terms, benefits, and conditions for the particular job opportunities, below which similarly employed U.S. workers would be adversely affected, must be established. (The regulations in this part establish such minimum levels for wages, terms, benefits, and conditions of employment.)

Second, the wages, terms, benefits, and conditions offered and afforded to the aliens-must be compared to the established minimum levels. If it is concluded that adverse effect would result, the ultimate determination of availability within the meaning of the INA cannot be made since U.S. workers cannot be expected to accept employment under conditions below the established minimum levels. …

Once a determination of no adverse effect has been made, the availability of U.S. workers can be tested only if U.S. workers are actively recruited through the offer of wages, terms, benefits, and conditions at least at the minimum level or the level offered to the aliens, whichever is higher.[64]

The 1978 DOL regulations also interpreted the INS regulations as “adopt[ing] the same admission standards for nonimmigrant temporary foreign workers that the INA (8 U.S.C. 1182(a)(14)(A) and (B)) requires for certain immigrants who seek to perform permanent work in the United States.”[65] Again, this is the closest to a DOL regulation requiring the use of the permanent labor certification prevailing wage methodology.

In 1981, DOL clarified in publicly available training materials that for permanent labor certifications, adjudicators must base the prevailing wage, in the absence of DBA-SCA or union wages on the arithmetic mean of the wages paid other workers similarly employed in the area, using a local office survey or any current survey.[66]

In 1984, DOL published an administrative letter outlining its procedures for the H‑2 nonagricultural program in which it explicitly stated, for the first time, that DOL would deny job offers below “the prevailing wage for such employment in the local area” and further stated that adjudicators should use the permanent labor certification methodology for determining the prevailing wage.[67] Nothing in the document suggests that this was a new rule or method.[68]

It appears that neither DOL nor INS regulations or policies regarding H‑2 nonagricultural workers were ever contested in court, and indirect challenges to the H‑2 agricultural wage regulations focused on the reasonableness of their computation, not the underlying authority,.[69]

Congress Creates the H‑2B Program

In 1986, Congress passed the Immigration Reform and Control Act (IRCA), which separated the H‑2 program into the H‑2A agricultural program and the H‑2B nonagricultural program.[70] The law incorporated the existing H‑2 INS labor certification requirements into statute, prohibiting workers when U.S. workers are available or when H‑2As would “adversely affect” the wages of U.S. workers.[71]

The H‑2B language, however, was not touched: “aliens … coming temporarily to the United States to perform other temporary service or labor if unemployed persons capable of performing such service or labor cannot be found in this country.”[72] As a result, DOL just readopted the same regulations and policies as the H‑2 nonagricultural program, despite the fact that Congress did not adopt the “adversely affect” language for the new H‑2B program.[73]

In May 1995, DOL released an administrative letter regarding H‑2B prevailing wage determinations.[74] It stated that it is “well settled” that employers must pay DBA-SCA wages even if the job isn’t specifically subject to those laws’ requirements (e.g. a government contract), and it specifically barred wage surveys that rely on the median or modal wage or that focus on an average within an industry or certain type of employer.[75] But it allowed adjudicators to consider wage surveys furnished by the employer, so long as they were verified.[76] Importantly, the administrative letter specifically delineated two skill levels within each occupation for prevailing wage determinations: entry level or experienced level.[77]

In 1997, DOL decided, in the absence of DBA-SCA, or collectively bargained (i.e. union) wages, the expanded Bureau of Labor Statistics (BLS) Occupational Employment Statistics (OES) provided the most efficient and accurate source for permanent, H‑1B, and H‑2B prevailing wage surveys and created special procedures to allow DOL to quickly process its existing cases until the new system was ready.[78] In 1998, it issued another administrative letter, mandating the use of the OES in the absence of DBA-SCA, or collectively bargained (i.e. union) wages, unless the employer provided a different survey, for permanent, H‑1B, and H‑2B wage determinations.[79]

The most important decision was that starting with the 1998 administrative letter, DOL instructed BLS to calculate “entry level” wages as the average of the lowest paid 33 percent of workers since the OES didn’t provide wage levels based on skills for each occupation.[80] This instruction was not publicly disclosed at the time. Starting in the year 2000 through 2005, DOL also issued memos that clarified that most landscaping jobs were not subject to the Service Contract Act wage determinations, but rather OES wages.[81]

On December 8, 2004, the president signed the H‑1B Visa Reform Act of 2004, which provided:

(3)The prevailing wage required to be paid pursuant to subsections (a)(5)(A) [permanent], (n)(1)(A)(i)(II) [H‑1B visas], and (t)(1)(A)(i)(II) [E visas] shall be 100 percent of the wage determined pursuant to those sections.

(4) Where the Secretary of Labor uses, or makes available to employers, a governmental survey to determine the prevailing wage, such survey shall provide at least 4 levels of wages commensurate with experience, education, and the level of supervision. Where an existing government survey has only 2 levels, 2 intermediate levels may be created by dividing by 3 the difference between the two levels offered, adding the quotient thus obtained to the first level, and subtracting that quotient from the second level.[82]

On December 27, 2004, DOL updated its permanent labor certification regulations to eliminate the mandatory use of DBA-SCA wage determinations and provide for four wage levels without the earlier flexibility to pay as little as 95 percent of the calculated wage.[83]

A month later, DOL proposed a regulation to eliminate DOL labor certification and instead require employers to attest that they will pay the prevailing wage, enforcing the attestation with audits.[84] It also proposed to use the new DOL permanent labor certification prevailing wage standards, citing the H‑1B Visa Reform Act but asserting that the law actually did not apply to the H‑2B program (despite its general terms).[85] Instead, it based its decision on the “practice to treat prevailing wage determinations the same under the H‑2B program as under the permanent labor certification program.”[86]

On March 1, 2005, without finalizing the proposed rule, DOL issued guidance mandating the new permanent labor certification standards be used for all nonagricultural programs including H‑2B.[87]

H‑2B Prevailing Wage Regulations

On December 19, 2008, DOL finalized its first-ever regulation mandating the prevailing wage for the H‑2B program.[88] It used the same process that it was already using through the 2005 guidance. It allowed the optional use of DBA-SCA wages, mandated calculation of OES wages at different skill levels (implicitly four), pay the highest prevailing wage of all locations where a worker may go, use non-OES surveys at employer request, and use the median wage if that was all the employer-provided survey made available.[89] The four wage levels were based on the average of the bottom third of the wage distribution for Level 1, the average of the top two thirds for Level 4, and the formula described in the H‑1B Visa Reform Act to arrive at Levels 2 and 3.[90]

In 2009, an advocacy organization sued DOL. In an August 2010 decision, a Pennsylvania district court agreed that DOL violated the Administrative Procedures Act by failing to explain the basis of the four skill levels and failing to respond to comments on its use of the OES wage surveys, not DBA-SCA.[91] With respect to skill levels, the court—in a footnote—asserted that the 2005 law mandating the use of four wage levels in “a governmental survey” did not apply to the H‑2B program because the section header stated, “H‑1B Prevailing Wage Level,” even though nothing in the text of the statute limits it to H‑1Bs (and it still applies also to permanent labor certifications as well).[92]

In 2011, DOL finalized new regulations in which it re-mandated SCA/DBA wages in cases where they are higher than the mean OES wage and eliminated the four wage levels.[93] It asserted that the mean would be the only “skill level” because “there are no significant skill-based wage differences in the occupations that predominate in the H–2B program.” It stated that there was no basis for mathematically creating them, despite Congress’s explicit 2005 requirement to do so. The rule only cites the Pennsylvania district court’s decision to explain why it would ignore this law. DOL dismissed evidence that H‑2B industries have not, in fact, seen wage depression.[94]

Congress intervened to stop the rule from taking effect by defunding its implementation in DOL funding legislation four times, causing DOL to repeatedly delay the effective date of the rule.[95] DOL continued to use the 2008 rule. Then in March 2013, the same Pennsylvania district court that had vacated the 2008 rule implementing the four wage levels ordered that DOL cease using the levels within 30 days, despite the congressional action.[96] In April 2013, it issued a final rule that dropped the mandate to use DBA-SCA wages from the 2011 rule and required the average of the OES wages in the occupation without regard to skills, but continued to permit skill-based wage levels in other employer-provided surveys and allowed the optional use of SCA or DBA wage determinations. [97] DOL then delayed indefinitely the implementation of the 2011 rule.[98]

In 2014, however, Congress finally dropped DOL funding restriction on the 2011 rule. In December 2014, the Third Circuit Court of Appeals vacated the 2013 prevailing wage rule on the grounds that it allowed skill-based wages to be used in employer-provided surveys and that it allowed employer-provided surveys in violation of DOL’s stated conclusions.[99] DOL immediately stopped accepting employer-provided surveys.

The Third Circuit also acknowledged that the 2004 law “suggests that the four-tier methodology should be used” for H‑2B, but stated that “the L‑1 Visa and H‑1B Visa Reform Act amended only provisions of U.S. immigration statutes dealing with the L‑1 and H‑1B visa programs,” based on section headers. Again, this was untrue. The law explicitly reformed E visas and permanent visas as well, and the fact that it removed references to specific visa types in the provisions requiring four wage levels suggests that it should not be read to limit its scope even to those categories. The court concluded—in a footnote—that, despite its own stated view that the language “suggests” it should be used, the statute is actually “unambiguous” in not applying to the H‑2B program and not subject to agency discretion.

In March 2015, a federal district court in Florida determined that DOL entirely lacked the authority under the INA to issue H‑2B regulations independently from DHS, but it stayed the ruling pending new regulations from DHS.[100] In April 2015, DHS and DOL jointly finalized a new wage rule that used the OES average as the basis for prevailing wage and banned the use of SCA or DBA prevailing wage determinations—whether they were higher or lower.[101] Employers had increased their use of SCA or DBA prevailing wage determinations from just over 1 percent to 14 percent of cases from 2010 to 2015.[102] It also eliminated the use of employer-provided wage surveys not conducted by a state, except in areas where the OES did not report a local wage.[103]

DHS justified the removal the skill-based tiers by stating, in part:

Market signals such as labor shortages that would normally drive wages up may become distorted by the availability of foreign workers for certain occupations, thus preventing the optimal allocation of labor in the market and dampening increased compensation that should result from the shortage.[104]

Setting aside the simplistic and flawed economic analysis, this argument admits that DHS is using the prevailing wage to force labor shortages on U.S. employers. Yet labor shortages are exactly what the H‑2B program was intended to prevent. Indeed, the House Judiciary Committee report on the INA in 1952 literally stated that the H‑2 program was needed “for the purpose of alleviating labor shortages.”[105] DHS further asserted that it received no evidence that there are skill-based differences in pay in H‑2B occupations.

For the first time, DHS and DOL justified their creation of the prevailing wage in the 2015 rule by stating:

In order to meet the statutory obligations required under … INA section 101(a)(15)(H)(ii)(b), and to determine whether “unemployed persons capable of performing such service or labor cannot be found in this country,” an adequate testing of the U.S. labor market is necessary. Any meaningful test of the U.S. labor market requires that H‑2B petitioning employers must attempt to recruit U.S. workers at the prevailing wage and pay H‑2B beneficiaries such prevailing wages.[106]

This reasoning requires multiple leaps of logic. First, because a higher wage would marginally reduce the number of job offers, it requires reading into the statute the view that Congress only wanted unemployed Americans hired at a certain wage. Otherwise, it wanted them to remain unemployed. Nothing in the statute hints at that possibility. Congress indicated its concern about finding jobs for unemployed workers, not jobs at certain rates.

Second, even if this were the correct interpretation of the statute, there would still be no basis in the statute for imposing that wage on H‑2B workers. DHS reads into the statute the requirement that if unemployed Americans don’t want jobs at the prevailing wage, employers cannot hire H‑2B workers at any other wage. If U.S. workers reject, say, 100 jobs at the prevailing wage, the government could reasonable allow the employers to hire maybe 150 H‑2B workers at whatever wage the workers would accept. This would allow those firms to increase their production, hire more Americans in complementary positions, and benefit U.S. consumers with lower prices.

Nonetheless, a Florida federal district court upheld the 2015 prevailing wage rules in 2016.[107] H‑2B employers contended that because the law required DOL to consider “adverse effect” on U.S. workers’ wages only for the H‑2A program, while mandating DHS consider only the effect on the availability of jobs for U.S. workers for the H‑2B program, the prevailing wage rule was contrary to congressional intent. The court found that despite this difference, the long history of the H‑2 prevailing wage, the failure of Congress to stop its use, and agency discretion allowed it to implement the rule.

In December 2015, Congress included in the DOL appropriations bill a provision that required that H‑2B prevailing wage determinations be the higher of:

(1) the actual wage level paid by the employer to other employees with similar experience and qualifications for such position in the same location; or (2) the prevailing wage level for the occupational classification of the position in the geographic area in which the H–2B nonimmigrant will be employed, based on the best information available at the time of filing the petition.[108]

The law defines best available information to include statistically valid private wage surveys, even if an OES wage level is available. Beyond requiring the actual wage level, DOL issued a guidance document that interpreted the provision as essentially only affecting the 2015 rule’s prohibition on private wage surveys, not requiring them to accept private wage surveys based on skills. Private wage surveys can allow employers to pay the median wage if that was the only wage calculated by the survey.[109] Congress still did not mandate the use of the prevailing wage, but merely set requirements for any determinations that DOL decided to make.

Conclusion

The strange and complex regulatory history of the H‑2B program’s prevailing wage requirement highlights the importance of Congress offering clearer immigration statutes, and courts not allowing as much discretion to the administration to invent immigration requirements that Congress did not impose. However, a future administration will still have substantial latitude to improve the prevailing wage requirement for the H‑2B program.