[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

[[Page 14680]]

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
------------------------------------------------------------------------
                                              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