Prevailing Wage Rates for Construction Occupations on Guam for Purposes of the H-2B Temporary Worker Program

AGENCY:

U.S. Citizenship and Immigration Services, DHS.

ACTION:

Notice.

SUMMARY:

U.S. Citizenship and Immigration Services (USCIS) is requesting comments from the public on the system that the Governor of Guam is using to determine prevailing wage rates for construction occupations on Guam. In addition, USCIS is posting the most recent prevailing wage rates that have been proposed by the Governor of Guam based on the system described in this notice. Based on its own analysis and input from the public, USCIS will determine whether the prevailing wage rates suggested by the Governor of Guam are reasonable and whether USCIS should require a new system to be used by the Governor of Guam in determining the prevailing wage rates.

DATES:

Written comments must be submitted on or before April 18, 2011.

ADDRESSES:

You may submit comments, identified by DHS Docket No. USCIS-2010-0006, by one of the following methods:

• Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.
• E-mail: You may submit comments directly to USCIS by e-mail at rfs.regs@dhs.gov. Include DHS Docket No. USCIS-2010-0006 in the subject line of the message.
• Mail: Chief, Regulatory Products Division, U.S. Citizenship and Immigration Services, Department of Homeland Security, 20 Massachusetts Avenue, NW., Washington, DC 20529-2020. To ensure proper handling, please reference DHS Docket No. USCIS-2010-0006 on your correspondence. This mailing address may be used for paper, disk, or CD-ROM submissions.
• Hand Delivery/Courier: U.S. Citizenship and Immigration Services, Department of Homeland Security, 20 Massachusetts Avenue, NW., Washington, DC 20529-2020. Contact telephone number is (202) 272-8377.

FOR FURTHER INFORMATION CONTACT:

John Brown, Management and Program Analyst, Business and Foreign Worker Branch, Office of Policy and Strategy, U.S. Citizenship and Immigration Services, Department of Homeland Security, 20 Massachusetts Avenue, NW., Washington, DC 20529-2140. Telephone Number (202) 272-1482.

SUPPLEMENTARY INFORMATION:

I. Background

Employers seeking temporary, nonagricultural workers from abroad may petition for such workers under the H-2B nonimmigrant visa classification. H-2B workers are persons who have a residence in a foreign country which they have no intention of abandoning and who are coming temporarily to the United States to perform temporary, nonagricultural service or labor. See Immigration and Nationality Act (INA) section 101(a)(15)(H)(ii)(b), 8 U.S.C. 1101(a)(15)(H)(ii)(b). They may be admitted to the United States as H-2B workers only if “unemployed persons capable of performing such service or labor cannot be found in this country * * *.” Id.

This Notice pertains to the proper determination of prevailing wage rates for construction occupations on Guam for purposes of ensuring an adequate test of the U.S. labor market, as mandated by INA section 101(a)(15)(H)(ii)(b), 8 U.S.C. 1101(a)(15)(H)(ii)(b). While Guam is part of the United States, see INA section 101(a)(38), 8 U.S.C. 1101(a)(38), special regulatory provisions apply to Guam for purposes of the H-2B program, see 8 CFR 214.2(h)(6)(iii)(D).

An employer seeking to import H-2B workers for employment on Guam must first obtain a temporary labor certification from the Governor of Guam, and then file an H-2B petition with USCIS. See 8 CFR 214.2(h)(6)(iii)(A) and (h)(6)(v). Notwithstanding the issuance of a temporary labor certification, USCIS must determine the adequacy of the U.S. labor market test, that is, among other things, whether: (1) There are no available U.S. workers to fill the positions in question, and (2) the alien's employment will adversely affect the wages and working conditions of similarly employed U.S. workers (i.e., adequacy of the U.S. labor market test). See 8 CFR 214.2(h)(6)(iii)(A).

A key component of the U.S. labor market test on Guam is a determination whether the wages and working conditions offered to U.S. workers by a prospective H-2B employer accurately reflect the prevailing wages and conditions on Guam. See 8 CFR 214.2(h)(6)(v)(E) and (F). If the prevailing wage rate is too low, available U.S. workers may be dissuaded from accepting the job offered. Similarly, a prevailing wage rate that is too high may disadvantage prospective employers by requiring them to pay wages higher than those paid to similarly situated workers.

As reported in a number of newspaper articles and websites, and by the Guam Department of Labor, over the next several years, Guam is expected to experience a substantial increase in the number of construction-related jobs available on the island due to the relocation of large-scale U.S. military facilities from Japan to Guam. The Governor of Guam, as required by regulation, submitted for USCIS's consideration proposed new wage rates for construction occupations on Guam to be used in connection with testing the availability of U.S. workers.

The proper determination of prevailing wage rates, however, depends on the adequacy of the system used to determine these rates. By regulation, the Governor of Guam must consult with USCIS to “establish systematic methods for determining the prevailing wage rates and working conditions for individual occupations on Guam and for making determinations as to availability of qualified United States residents.” See 8 CFR 214.2(h)(6)(v)(E). USCIS is required to approve “the system to determine prevailing wages and working conditions and the system to determine availability of United States resident workers” and publish such systems in the Federal Register. See 8 CFR 214.2(h)(6)(v)(F)(1). For construction occupations on Guam, the Governor of Guam is required to submit wage survey data and proposed rates to USCIS, and USCIS is required to approve specific wage data and rates used prior to implementation of new rates. 8 CFR 214.2(h)(6)(v)(F)(2). Notwithstanding the submission by the Guam Department of Labor (GDOL) of wage rates for construction occupations on Guam, USCIS has not, to date, published an approved system for determining such wage rates. USCIS is responsible for determining whether the system used by the Governor of Guam for determining the prevailing wage rates for construction occupations on Guam is adequate to satisfy the requirements of the H-2B statute and relevant regulations.

This Notice solicits the views of the public as to both the system used by the Governor of Guam and her delegates to determine wage rates and the rates submitted by the Governor of Guam. USCIS believes that it is appropriate to solicit the views of the U.S. public in order to ensure the accuracy of the wage rates and proper administration of the H-2B program. While USCIS is not required to solicit public comments on the prevailing wage rates for H-2B construction occupations on Guam and the system used to determine these wage rates, USCIS believes that the public's comments will be a valuable tool in assisting USCIS to evaluate Guam's system for determining prevailing wages and determining the accuracy of the wage rates submitted by Guam.

II. System for Determining the Prevailing Wage Rates for Construction Occupations on Guam

The Guam Department of Labor relies on the Occupational Employment Statistics (OES) wage estimates provided by the U.S. Department of Labor's Bureau of Labor Statistics (BLS) in proposing the prevailing wage rates for construction occupations on Guam. The OES wage estimates are calculated from data collected from the OES survey administered by the BLS. The OES survey used for Guam is a semiannual mail survey of nonfarm employers in Guam. The BLS produces the survey materials and selects the employers to be surveyed. In the case of Guam, the sampling frame (the list from which establishments to be surveyed are selected) is derived from a list of employers submitted to the BLS by the GDOL. The OES survey generally does not reflect input from interested U.S. labor groups or members of the construction trades in Guam or elsewhere in the United States.

USCIS, in consultation with BLS, is currently reviewing GDOL's system for determining current and proposed prevailing wage rates received from the GDOL in January 2010, and invites the public to comment on whether the current system for determining such wage rates satisfactorily ensures an adequate test of the U.S. labor market. USCIS intends to publish a subsequent notice in the Federal Register to announce the approved system, in accordance with 8 CFR 214.2(h)(6)(v)(F)(1).

III. Proposed Prevailing Wage Rates

The table below provides the current and proposed prevailing wage rates for construction occupations on Guam, as provided by the GDOL to USCIS on January 10, 2010. The currently approved construction wage rates, which were based on 2007/2008 BLS data, will remain in effect until any new prevailing wage rates are approved by USCIS. USCIS intends to publish the prevailing wage rates it approves in the same Federal Register notice that announces the approved system for determining prevailing wages, working conditions, and availability of U.S. resident workers.

IV. Comments

USCIS welcomes comments from the public regarding:

• The current system for determining prevailing wage rates for construction occupations on Guam and the proposed prevailing wage rates that were calculated by the current system; and
• Whether this system adequately reflects a balance of the interests of all affected members of the regulated public.