H-2B Visa Employer Series: The Prevailing Wage Determination
Welcome back to the H-2B Visa Employer Series. For this post, we will be examining the Prevailing Wage Determination. This post will discuss when to file, where to file, and what information to include or exclude. Again, this is all generally speaking and not intended as legal advice for any employers out here who want to take this step without retaining legal counsel.
Each H-2B Visa application begins with the Form ETA 9141, the Prevailing Wage Determination (“PWD”). The PWD is the Employer’s chance to describe the job they are hoping to fill, describe the work conditions, and the geographic area where work will be conducted. While the PWD is a relatively quick and “easy” step in the process, many H-2B Visa applications have been derailed by sloppy or incomplete PWDs. This post is broken into three primary categories: The When, The Where, The What. Hopefully after reading this, you’ll be in a position to navigate this early step in the H-2B Visa application process.
The When
To begin, it is important to file the PWD AT LEAST 4 months prior to your intended start date. For example, if you are applying for an April 1, 2022 start date, make sure those PWD applications are filed no later than December 1, 2021.
The Where
The PWD is filed through an online portal called Foreign Labor Application Gateway or “FLAG”. FLAG will be your best friend and your worst enemy at times, but for better or worse, it is the online portal used by the Department of Labor. So, create an account and get familiar with the portal and the documents.
The What
While there are many parts of the PWD that are straight forward, it is important that information is entered correctly. It is important to your H-2B Visa application that information such as “Employer Name” “Worksite Address” and “Contact Information” is entered correctly.
In addition to this standard information, Employers must also provide a “Job Title” and “Job Description”. Job Title can be anything that makes sense for your company, but Job Description needs to be accurate. There are times when an Employer simply needs general labor, and might designate that the “Employee will perform routine and traditional landscaping services….” This doesn’t need much more explanation, but if that employee ended up performing masonry tasks as part of a hardscape project, the Employer might be in violation of misclassifying the position in an effort to receive a lower wage rate. So, if you expect the employee to do it, list it. It is better to be overly broad than overly narrow generally speaking. (Warning: this may result in a higher wage rate - but it won’t result in costly fines and a potential ban from the H-2B Visa program for improper conduct).
Similar to the Job Description, it is essential that the Employer provide “Additional Places of Employment” if the employees will be traveling to various worksites during employment. While an Employer may file for PWDs for countless worksites across the country, the Employer will need to narrow down these worksites during the next stage of the H-2B Visa application process, as a company generally may not have worksites that are greater than 120 miles apart in the same ETA 9142B application (tune in next week for further discussion). And similar to the Job Description — If an Employer expects or believes it possible for a worker to work in a geographic area, then it is essential that the Employer list that site in its PWD. While locations can be removed during the 9142B filing, an Employer may not add a geographic location that it did not list in its PWD.
As mentioned above, Employers may remove a location from its application during the 9142B filing. If, for example, an Employer thought it wanted H-2B Visa workers to work in 10 different geographic areas, but the PWDs returned at a wage rate of $12.00 per hour for 9 of those areas and $19.00 for the final area, then the Employer might wish to remove the outlier and have H-2B Visa workers not work in that area. And don’t forget, if that final area is included in the 9142B, then the Employer must pay the workers $19.00 per hour not only for work done in that area, but for ALL work because it is the highest wage rate of all the geographic areas that determines the wage rate required to be paid to the H-2B Visa workers.
To conclude, it is essential that your Form ETA-9141 is filled out correctly, provides an accurate Job Description, and lists ALL expected geographic areas of work. While the PWD seems like an easy step in the H-2B Visa application journey, take the time to do it correctly, or it could be a costly mistake that derails an entire application.
If you find these posts beneficial, be sure to tune in Monday, September 27 for “The 9142B and Common Pitfalls to Avoid”
*Some documents provided via links may be outdated and readers should always check to make sure they they use the current edition.
