The Department of Labor's Employment and Training Administration (ETA) published a notice in the Federal Register on March 24, 2026, soliciting public comments on a proposed extension of an information collection request (ICR) titled 'Application for Prevailing Wage Determination.' This ICR, under OMB Control Number 1205-0508, encompasses several forms essential for employers seeking to hire foreign workers under specific immigration programs. The notice invites feedback by May 26, 2026, as part of the department's ongoing compliance with the Paperwork Reduction Act of 1995 (PRA), which aims to minimize paperwork burdens while ensuring necessary data collection. This development underscores the federal government's efforts to balance administrative efficiency with the regulatory requirements of foreign labor certifications, potentially affecting thousands of employers annually.
Background on Prevailing Wage Determinations
Prevailing wage determinations play a critical role in U.S. immigration policy, ensuring that the employment of foreign workers does not undermine domestic labor markets. Rooted in the Immigration and Nationality Act (INA), these determinations require the Secretary of Labor to certify that hiring foreign workers will not adversely affect wages or working conditions for similarly employed U.S. workers. Specifically, under 8 U.S.C. 1182(a)(5)(A)(i)(II), employers must demonstrate insufficient availability of qualified U.S. workers and no adverse impact on wages before admitting certain immigrants or nonimmigrants.
The process is administered by ETA's Office of Foreign Labor Certification (OFLC), which issues prevailing wage determinations (PWDs) based on applications from employers. For programs like the Permanent Employment Certification (PERM) and H-2B temporary non-agricultural worker program, obtaining a PWD is mandatory before filing a full labor certification application. In contrast, for H-1B, H-1B1, and E-3 specialty occupation programs, employers may optionally request a PWD to support their Labor Condition Applications (LCAs), where they must attest to paying at least the prevailing wage or the actual wage, whichever is higher, as per 8 U.S.C. 1182(n)(1)(A)(i).
This framework draws from historical precedents, including amendments to the INA through laws like the Immigration Act of 1990, which expanded protections for U.S. workers in high-skilled fields. Key players include DOL officials, such as Brian Pasternak, Administrator of OFLC, who is listed as the contact for this ICR. Employers, ranging from private businesses to state and local governments, rely on these forms to navigate complex hiring processes.
Details of the Proposed Extension
The notice proposes extending the current ICR without any changes to the forms or instructions. The collection includes Form ETA-9141, the core Application for Prevailing Wage Determination, along with its general instructions and Appendix A for requesting additional worksites. Additionally, it covers Form ETA-9165, which provides employer attestations for H-2B prevailing wage requests based on non-OEWS (Occupational Employment and Wage Statistics) surveys, and its accompanying instructions.
According to the notice, this extension aligns with DOL's pre-clearance consultation under the PRA, allowing public input on the necessity, accuracy, and burden of the collection. The current approval expires on July 31, 2026, and the department seeks OMB renewal to continue operations. Comments are encouraged on aspects such as practical utility, burden estimates, and ways to enhance clarity or minimize costs, including through electronic submissions.
Affected Programs and Burden Estimates
The ICR supports multiple foreign labor programs. In PERM and H-2B, employers must obtain a PWD to certify wage levels, preventing undercutting of U.S. wages. For H-1B programs, optional PWDs help employers comply with LCA requirements. The notice estimates 61,109 annual respondents, primarily from the private sector, not-for-profits, and government entities, generating 498,432 responses. The average time per response is about 1 hour and 42 minutes, leading to a total annual time burden of 226,292.84 hours and other costs of $188,939.45.
These figures reflect DOL's methodology for assessing burden, based on historical data and assumptions about respondent behavior. For instance, Form ETA-9165 is tailored for H-2B employers using alternative surveys when OEWS data is unavailable, requiring attestations to ensure survey validity.
Implications and Perspectives
From a policy standpoint, this extension maintains the status quo in foreign labor certification, potentially stabilizing processes for employers amid fluctuating immigration debates. Proponents, including business groups, argue that streamlined wage determinations facilitate access to needed talent without excessive bureaucracy. Critics, such as labor unions, may view it as an opportunity to advocate for stronger wage protections, citing concerns over exploitation in programs like H-2B.
Legally, the ICR's foundation in INA provisions has withstood challenges, as seen in cases like the 2013 ruling in Comite de Apoyo a los Trabajadores Agricolas v. Solis, which influenced H-2B wage methodologies. Politically, the notice emerges in a context of ongoing discussions about immigration reform, with stakeholders from both sides of the aisle monitoring DOL's actions for impacts on workforce dynamics.
Short-term implications include minimal disruption for ongoing applications, while long-term effects could hinge on public comments leading to future revisions. Different perspectives highlight a divide: employers seek efficiency, while worker advocates push for enhanced oversight to prevent wage suppression.
Forward-Looking Conclusion
This proposed ICR extension highlights the enduring role of prevailing wage mechanisms in U.S. immigration policy. As comments are collected, potential next steps include OMB review and possible adjustments based on feedback. Ongoing debates may focus on integrating technology to reduce burdens or addressing gaps in wage data accuracy, shaping how DOL balances labor protections with economic needs in the years ahead.
