This article was prepared with the assistance of ABIL, the Alliance of Business Immigration Lawyers, of which Loan Huynh, Fredrikson Immigration Department Chair, is a member.
The Department of Labor’s (DOL) Office of Foreign Labor Certification (OFLC) has released frequently asked questions (FAQs) on prevailing wage surveys under the 2022 H-2A final rule, “Temporary Agricultural Employment of H-2A Nonimmigrants in the United States,” published on October 12, 2022, and effective November 14, 2022.
OFLC said the FAQs are intended to assist State Workforce Agencies (SWAs) and others in understanding the prevailing wage survey methodology of the final rule. OFLC said the updated methodology:
- Allows the SWAs to conduct prevailing wage surveys or to leverage surveys conducted by other state agencies, state colleges, or state universities, provided that the survey meets the standards listed in 20 CFR § 655.120(c)(1);
- Permits the SWAs to determine the best data collection period for a particular prevailing wage survey;
- Enables the SWAs to make decisions about prioritizing precision, accuracy, granularity, or other quality factors in the data they use to inform prevailing wage findings, rather than requiring statistical validity;
- Establishes standards to produce prevailing wage findings for crop activities and agricultural activities with few employers and U.S. workers;
- Establishes a regulatory process for the SWAs to submit prevailing wage surveys to OFLC and for OFLC to review, approve, and post prevailing wages on OFLC’s Agricultural Online Wage Library (AOWL); and
- Provides that a prevailing wage finding is valid for one year from the date of posting on OFLC’s website (i.e., AOWL) or until replaced with an adjusted prevailing wage finding, whichever comes first.
DOL provides additional information about prevailing wage survey methodological requirements in the preamble to the 2022 H-2A final rule. In particular, the agency called attention to pages 61689 through 61701.
