[Federal Register Volume 76, Number 52 (Thursday, March 17, 2011)]
[Notices]
[Pages 14679-14681]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-6208]
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DEPARTMENT OF HOMELAND SECURITY
U.S. Citizenship and Immigration Services
[CIS No. 2394-10; DHS Docket No. USCIS-2010-0006]
RIN 1615-ZA98
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.
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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 [email protected]. 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
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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).\1\
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\1\ In addition, Congress has exempted Guam from the numerical
cap on H-2B workers from November 28, 2009, to December 31, 2014.
See section 6(b) of Public Law 94-241, as added by section 702 of
the Consolidated Natural Resources Act of 2008, Public Law 110-229.
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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.\2\ 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.
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\2\ See, e.g., http://www.guambuildup.com and http://www.reuters.com/article/idUSTRE6711TA20100802.
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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.\3\ 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.\4\
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\3\ For additional background and details relating OES
methodology, please see the main webpage for OES at http://www.bls.gov/oes/home.htm.
\4\ Once the survey is completed, the BLS publishes the OES wage
rates on the U.S. Department of Labor's Foreign Labor Certification
Online Wage Library (OWL), which is available at http://wwwforeignlaborcert.doleta.gov/wages.cfm. GDOL has informed USCIS
that it relied on the OWL wage rates in proposing the prevailing
wage rates described in this Notice for construction occupations on
Guam, but that, in certain cases, GDOL's proposed rates (e.g., those
for pipefitters, structural steelworkers, and surveyor helpers) do
not match those published on the OWL. Since, according to Guam DOL,
the wages for these occupations actually declined from the previous
survey, Guam DOL suggested that the wages for these occupations be
frozen at the previous higher rate. The OWL reports wages at four
different levels for each occupation. These levels correspond to
different skill, training and educational attainment of workers.
Level 4 wages reflect the highest wage rates for a given
occupational category. The wage rates that GDOL has proposed reflect
Level 4 wages.
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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
[[Page 14681]]
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.\5\ 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.
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\5\ The BLS has recently released new wage rate data, available
at http://www.bls.gov/bls/blswage.htm, for the half year period
beginning July 2010.
Table--Prevailing Wage Rates for Construction Occupations on Guam
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Current
approved Proposed
Occupation hourly wage hourly wage
rate rate
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Bricklayer.............................. $14.02 $14.12
Camp Cook............................... 11.85 12.83
Carpenter............................... 13.56 13.75
Cement Mason............................ 12.87 12.97
Construction Equipment Mechanic......... 14.14 15.15
Electrician............................. 15.45 16.35
Heating, Air Conditioning & 15.73 17.62
Refrigeration Mechanic.................
Operating Engineer...................... 13.77 14.72
Painter................................. 14.60 14.94
Pipe Fitter............................. 16.80 15.24
Plasterer............................... 10.98 11.61
Plumber................................. 14.96 15.24
Reinforcing Metal Worker................ 12.56 12.88
Sheet Metal Worker...................... 15.17 16.14
Structural Steel Worker................. 13.22 11.35
Surveyor Helper......................... 15.98 15.20
Welder.................................. 16.09 16.19
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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.
Alejandro N. Mayorkas,
Director, U.S. Citizenship and Immigration Services.
[FR Doc. 2011-6208 Filed 3-16-11; 8:45 am]
BILLING CODE 9111-97-P