20 C.F.R. § 655.120 : Employees' Benefits — EMPLOYMENT AND TRAINING ADMINISTRATION, DEPARTMENT OF LABOR — TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED STATES — LABOR CERTIFICATION PROCESS FOR TEMPORARY AGRICULTURAL EMPLOYMENT IN THE UNITED STATES (H-2A WORKERS) —FILING PROCEDURES — [Effective until 3/30/2023] Offered wage rate

(a) Employer obligation. Except for occupations covered by §§ 655.200 through 655.235, to comply with its obligation under § 655.122(l), an employer must offer, advertise in its recruitment, and pay a wage that is at least the highest of:
(1) The AEWR;
(2) A prevailing wage rate, if the OFLC Administrator has approved a prevailing wage survey for the applicable crop activity or agricultural activity and, if applicable, a distinct work task or tasks performed in that activity, meeting the requirements of paragraph (c) of this section;
(3) The agreed-upon collective bargaining wage;
(4) The Federal minimum wage; or
(5) The State minimum wage.
(b) AEWR determinations.
(1) [Reserved]
(2) The OFLC Administrator will publish, at least once in each calendar year, on a date to be determined by the OFLC Administrator, the AEWRs for each State as a notice in the Federal Register.
(3) If an updated AEWR for the occupational classification and geographic area is published in the Federal Register during the work contract, and the updated AEWR is higher than the highest of the previous AEWR, a prevailing wage for the crop activity or agricultural activity and, if applicable, a distinct work task or tasks performed in that activity and geographic area, the agreed-upon collective bargaining wage, the Federal minimum wage, or the State minimum wage, the employer must pay at least the updated AEWR upon the effective date of the updated AEWR published in the Federal Register.
(4) If an updated AEWR for the occupational classification and geographic area is published in the Federal Register during the work contract, and the updated AEWR is lower than the rate guaranteed on the job order, the employer must continue to pay at least the rate guaranteed on the job order.
(5) [Reserved]
(c) Prevailing wage determinations.
(1) The OFLC Administrator will issue a prevailing wage for a crop activity or agricultural activity and, if applicable, a distinct work task or tasks performed in that activity if all of the following requirements are met:
(i) The SWA submits to the Department a wage survey for the crop activity or agricultural activity and, if applicable, a distinct work task or tasks performed in that activity and a Form ETA-232 providing the methodology of the survey;
(ii) The survey was independently conducted by the State, including any State agency, State college, or State university;
(iii) The survey covers work performed in a single crop activity or agricultural activity and, if applicable, a distinct work task or tasks performed in that activity;
(iv) The surveyor either made a reasonable, good faith attempt to contact all employers employing workers in the crop activity or agricultural activity and distinct work task(s), if applicable, and geographic area surveyed or contacted a randomized sample of such employers, except where the estimated universe of employers is less than five. Where the estimated universe of employers is less than five, the surveyor contacted all employers in the estimated universe;
(v) The survey reports the average wage of U.S. workers in the crop activity or agricultural activity and distinct work task(s), if applicable, and geographic area using the unit of pay used to compensate the largest number of U.S. workers whose wages are reported in the survey;
(vi) The survey covers an appropriate geographic area based on available resources to conduct the survey, the size of the agricultural population covered by the survey, and any different wage structures in the crop activity or agricultural activity within the State;
(vii) Where the estimated universe of U.S. workers is at least 30, the survey includes the wages of at least 30 U.S. workers in the unit of pay used to compensate the largest number of U.S. workers whose wages are reported in the survey. Where the estimated universe of U.S. workers is less than 30, the survey includes the wages of all such U.S. workers;
(viii) Where the estimated universe of employers is at least five, the survey includes wages of U.S. workers employed by at least five employers in the unit of pay used to compensate the largest number of U.S. workers whose wages are reported in the survey. Where the estimated universe of employers is less than five, the survey includes wages of U.S. workers employed by all such employers; and
(ix) Where the estimated universe of employers is at least 4, the wages paid by a single employer represent no more than 25 percent of the sampled wages in the unit of pay used to compensate the largest number of U.S. workers whose wages are reported in the survey. This paragraph (c)(1)(ix) does not apply where the estimated universe of employers is less than four.
(2) A prevailing wage issued by the OFLC Administrator will remain valid for 1 year after the wage is posted on the OFLC website or until replaced with an adjusted prevailing wage, whichever comes first, except that if a prevailing wage that was guaranteed on the job order expires during the work contract, the employer must continue to guarantee at least the expired prevailing wage rate.
(3) If a prevailing wage for the geographic area and crop activity or agricultural activity and distinct work task(s), if applicable, is adjusted during a work contract, and is higher than the highest of the AEWR, a previous prevailing wage for the geographic area and crop activity or agricultural activity or, if applicable, a distinct work task or tasks performed in that activity, the agreed-upon collective bargaining wage, the Federal minimum wage, or the State minimum wage, the employer must pay at least that higher prevailing wage upon the Department's notice to the employer of the new prevailing wage.
(4) If a prevailing wage for the geographic area and crop activity or agricultural activity and distinct work task(s), if applicable, is adjusted during a work contract, and is lower than the rate guaranteed on the job order, the employer must continue to pay at least the rate guaranteed on the job order.
(d) Appeals.
(1) If the employer does not include the appropriate offered wage rate on the Application for Temporary Employment Certification, the CO will issue a Notice of Deficiency (NOD) requiring the employer to correct the wage rate.
(2) If the employer disagrees with the wage rate required by the CO, the employer may appeal only after the Application for Temporary Employment Certification is denied, and the employer must follow the procedures in § 655.171.

20 C.F.R. §655.120

85 FR 70477, 12/21/2020; 87 FR 61791, 11/14/2022