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.
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