Written by attorney Damjan Petar DeNoble

H-2B Prevailing Wage Determination Guide

Prevailing Wage is the 1st Big Step in the H-2B Certification Process

This is the second video in our four-part H-2B certification series, which takes a practical look at what the H-2B Visa Program looks like in 2017. An accompanying blog post on the prevailing wage determination process can be found here

Today, we’re going to build on our first H-2B video's broad overview by really diving into one of the integral steps in the application process.

Obtaining the Prevailing Wage Determination is the Critical 1st Step in Any Perm Process

If you watched our last video, then you may remember that the first formal step in obtaining H-2B approval is receiving a Prevailing Wage Determination. The Prevailing Wage Determination is completed on ETA Form 9141 and, if anything, this makes it look deceptively simple.

The 9141 is a relatively short form with much of the same boilerplate information as every other immigration based form, so while there is no need to walk through all of the form, this segment briefly discusses how to receive a determination and then we’ll get into the important portions of the Prevailing Wage Determination document.

Prevailing Wage Determination Job Description

Your Prevailing Wage Determination will provide you with the minimum wage(s) that you are required to pay any H-2B worker. The rate will vary from job to job, state to state, and even city to city. Being strategic about your job description for the workers you wish to hire, and about the geographic area you want them to work in is a decision that can literally cost you tens of thousands of dollars over the course of the year.

We discuss in detail in the video how you will need to nail down what the expected job duties will be. This is required so that the Department of Labor can accurately determine what other professionals in this practice area get paid. While every detail of the job doesn’t necessarily go into the description, you will need to be as accurate as possible. If your description is too short or generic, then you might have difficulty in receiving the Determination and/or subsequently H-2B approval.

Providing a clear and concise description of the work can be difficult at times depending on the uncertainty of projects that your company may receive, but your Prevailing Wage Determination should always reflect your expectations of your H-2B employees.

Geographic Area and the Prevailing Wage

The hardest part of the Prevailing Wage Determination is providing ALL the geographic areas that the H-2B Employee will work. For some companies, this is easy. For instance, a hotel/resort is in one location and will not move.

However, for employers such as construction companies that travel throughout a region and constantly win bids that require them to venture into new geographic areas, this can be a very tricky section.

For this reason, we recommend that employers use their imagination and speculate ALL geographic regions that they could conceivably use their H-2B employees in.

This might result in a slightly higher (or lower) Wage Determination depending on the region, but it is the best way to receive a Determination without complications and ultimately secure H-2B approval.

This is a vital step in the process, because once a Prevailing Wage Determination is issued, it cannot be altered. While an employer could edit their 9141 and re submit, new geographic regions cannot be added to a previously issued Prevailing Wage Determination.

For this reason, we strongly encourage employers to think very broadly as they identify the geographic region of expected H-2B Employee use. Rather than look at old contracts, we encourage clients to not only look at old contracts, but to consider what geographic areas they hope to work in for the coming years.

Prevailing Wage Final Thoughts

The Prevailing Wage Determination/9141 is a relatively simple step in your H-2B application process, but the pitfalls mentioned earlier can really throw a wrench into your application and should not be taken lightly.

For more on the following steps of an H-2B Visa application, subscribe to our youtube channel or check back on my Avvo profile, where you can find several video guides that discuss the rest of the H-2B Certification process.

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