H-2B Visa Employer Series: Form ETA-9141 (Prevailing Wage Determination)
Welcome back to the bi-weekly H-2B Visa Employer Series presented by Williams Law Pllc, home of @H2BLawyer!
In today’s Post, we will be discussing the Prevailing Wage Determination. What is it? Where do you file it? When do you file it? And, what to do if you don’t like it.
What is the Prevailing Wage Determination?
The Prevailing Wage Determination is the wage rate that all H-2B employers must pay to its H-2B beneficiaries. Employers are required to file Form ETA-9141 and obtain a Prevailing Wage Determination (except in emergency circumstances) prior to filing an H-2B application. Form ETA-9141 must include a full description of the job as well a disclosure of all areas in which work is to be performed by an H-2B beneficiary. If the Prevailing Wage Determination does not include a location or duties/responsibilities, then an employer should not require a beneficiary to perform that particular type of work or work in the unlisted location, or the employer could be subject to penalty.
However, an employer should be strategic about their explanations and strategic in deciding what duties to have a beneficiary perform. For instance, if an employer performs landscaping or hardscaping work which sometimes includes electrical installation, the employer should know that if (1) a beneficiary will perform this work, then it should be disclosed, and (2) if electrical work is disclosed, then a wage rate will be higher than other types of landscaping labor. So, an employer should consider if it is worth a higher rate to have additional worker(s) who can perform this work, or if it would be better to allocate H-2B workers to other areas of need that would not carry a higher wage rate. These are matters that can become quite tricky, and we always recommend taking advantage of a consultation with ourselves or another attorney prior to filing your first Prevailing Wage Determination for these reasons.
Where to file the Prevailing Wage Determination?
The Prevailing Wage Determination application, Form ETA-9141 is filed on the FLAG portal. Users will need to create an account to access FLAG. Once an account is created, the Prevailing Wage Determination can be created through the portal. While it is always a good idea to fill out an ETA-9141 or have a client do so beforehand, the application is filled out and submitted via FLAG rather than by emailing or uploading a pdf version. While there may be work arounds to this, we strongly encourage all employers, agents and attorneys to operate fully though FLAG.
When to file the Prevailing Wage Determination?
Generally, we advise employers to file a Prevailing Wage Determination application no later than November 1 if they are applying in the April Cycle. We advise this for two reasons. (1) Prevailing Wage Determinations are instantly returned. A typical return time is approximately 30 days. Meaning that a Prevailing Wage filed on November 1 is likely to be returned by December 1. Which brings us to point 2. (2) Prevailing Wages sometimes need to be refiled. Especially for first-time applicants, a Prevailing Wage Determination may come back higher than expected. In the example above, you might receive a prevailing wage of $25.00 per hour for a position you considered to be “entry level landscaping labor'“ — however due to the electrical work, it is classified as “electrician” which results in a considerably higher hourly rate. In the event something unexpected like that occurs, you may want to remove or amend some of the job description to obtain a lower rate. If you do not file your first Prevailing Wage Determination application early, you will simply not have time to amend and file a second application before your ETA-9142 must be filed.
What to do if you don’t like your Prevailing Wage Determination?
As mentioned above, it is entirely possible that your Prevailing Wage Determination will not come back as expected. Maybe your application was classified as “electrician” instead of “entry level landscaping labor” or you are attempting to find an “Assistant” but you included details of the work to be assisted with and now the Determination has returned as if the “Assistant” is the lead of more complex projects. Or, perhaps one particular geographic location has a much higher wage rate than the other locations (you have to pay that rate for all work!). These are all realistic outcomes for a Prevailing Wage Determination, and below we will attempt to address each hypothetical scenario.
Misclassification
In the event that your application has been classified and you believe this to be incorrect, a full analysis of why it was classified as such is necessary. For instance, did you include electrical work that resulted in an “electrician”? If so, your options are (1) accept the higher wage rate, or (2) file a new ETA-9141 with an amended job description.
In the event that you attempted to describe an “Assistant” position, but the wage returned more closely resembles that which the person being assisted might earn, you can generally request that the form be re-evaluated and you are given a chance to explain why you believe the rate to be incorrect. While this is an option that is available, it is time consuming. And, many times the second rate returned will still not be as low as what you may expect (speaking from experience).
Location
While it may seem that an application covering an acceptable geographic area would result in very similar wage rates due to proximity, this is not always the case. For instance, some areas result in several dollars per hour higher wage rates. And, if that area is then listed as a worksite area in your ETA-9142 application, then the highest wage rate of all the worksite areas must be paid for all work to be done, resulting in several thousands of dollars difference in wages.
An employer should always remember that just because a geographic location is listed in its ETA-9141, it does not have to be included in its ETA-9142. And employer should always evaluate whether it makes sense to accept a higher wage rate or to allocate workers so that beneficiaries will never work in an area that boosts the wage rate for all work done by H-2B beneficiaries.
Closing Thoughts
While the Prevailing Wage Determination is a fairly straight-forward document and process, it can have severe ramifications if it is not given the proper consideration. Each year, there are first-time applicants who receive a Prevailing Wage Determination with a rate that is much higher than expected and results in them being unable to proceed with their H-2B application. If you are a new employer, or an employer who has received a rate in the past that was much higher than expected and you would like discuss the details and see if it might be possible to receive a lower rate this year, we would encourage you to reach out to us. Mention this Post to receive a Free 30 minute H-2B Visa consultation. We can be reached by email at info@trentwilliamslaw.com or you can reach us through the Contact page of this website or you can call us at (615) 422.7130!
If you find this Post useful or you have questions about the next step in the H-2B Visa application process, tune in next Monday!
