In the closing months of the Trump administration, the Department of Labor (DOL) proposed a rule that would assign H-1B visas based on wages, as opposed to the current lottery system. Although the Biden administration seemed interested in continuing some version of the plan, a recent court ruling may have killed it—and perhaps lessened the overall chances of tethering the H-1B to higher salaries.
The DOL rule would have raised the lowest possible wages that companies could have offered for workers on the H-1B, H-1B1, and E3 visas. The goal, added a DOL press release at the time, was to “improve the accuracy of prevailing wages paid to foreign workers by bringing them in line with the wages paid to similarly employed U.S. workers.” A few months after Biden took office, the DOL sought public input on fair H-1B wage levels, indicating that the concept was still alive in the halls of government, although it delayed implementation of the actual Trump-era rule until November 2022.
But now Forbes reports that the DOL rule is dead in court, citing a client alert from Berry Appleman & Leiden, an immigration-centric law firm. “DOL did not oppose vacating the rule because it had already significantly delayed the effective date to allow time to consider concerns raised in the litigation and regulatory comments,” read the alert. “The agency is in the process of reviewing information it received in response to a Request for Information on prevailing wage methodology.”
The alert added: “Now that the DOL wage rule has been vacated, the matter will go back to the agency for further review and consideration.”
The rumblings of an H-1B wage adjustment continue. For example, Biden’s U.S. Citizenship Act of 2021 would prioritize visas based on wages, and give both the Secretaries of Homeland Security and Labor the ability to determine the appropriate wage levels. As with much legislation, though, it’s hard to tell what will pass until an actual vote.
Tethering H-1Bs to higher wages would probably not have a huge impact on companies that utilize the visa to draw highly specialized talent from overseas. After all, these companies are already prepared to pay extraordinary salaries for hard-to-find skills. But higher minimum wages would potentially wreck the budgets of the consulting and business-services firms that apply for many thousands of H-1B visas every year, then subcontract those H-1B workers to other companies.
