Late on Tuesday night – Indian time, the US Department of Labor (DOL) announced the introduction of final wage rules that would raise the prevailing pay for those working on H-1B visas or holding employment-based green cards in the United States.
The new rule, which will be published in the Federal Register on January 14, is the Trump administration’s second attempt to raise wages for foreign workers – under the H-1B or PERM (aka Green card) labor certification program.
The first attempt to do so through the hastily introduced route Interim final ruleIt came into force on October 8 last year and was blocked by three district courts in cases filed by the Department of Technology, the Department of Education and nonprofits. The Courts consider that it is not practicable to solicit and review public opinion required under the Administrative Procedure Act. Court orders led to the revocation of the DOL interim final provision.
However, as announced by the TOI, the fall program of the Trump administration in early December indicated its intention to reintroduce the regime, which is now in action.
“There is a significant pay rise for all four in the final rule Wage levels, The new minimum was not initially higher than expected by the DOL. The rule also provides for a multi-year transition period, which aims to allow employers to meet wage increases and provide some accommodation for H-1B workers who will continue to have permanent residency based on employment. The initial pay rise is set to begin on July 1, 2021, “Mitch Wexler, a partner at Frocoman in California, told TOI, a global immigration law firm.
The DOL said in a statement, “On October 8, 2020, the department issued an interim final order calling for public comment. After a detailed review of the feedback received, the department determined that the current wage system undermines wages and employment.” Is in a state of tension. ”
“The U.S. DOL is taking steps to strengthen wage protections, address abuses in visa programs, and protect U.S. workers from being victimized by cheap foreign labor,” Labor Secretary Eugene Scalia said. “These changes will help ensure that these important foreign labor programs are implemented Congress While protecting American workers’ opportunities for stable, well-paying jobs. In response to the feedback we received, the department has adjusted the pay scale used in the interim final rule to better reflect market wages and has made arrangements to facilitate the transition to the new wage levels, ”Scalia added.
When President-elect Joe Biden expressed his intention to expand the number of H-1B visas (currently limited to an annual quota of 85,000) he pointed out that the exploitation of foreign workers would be banned. . It remains to be seen how the new administration will respond to this new rule.
How it works: DOL uses the Bureau of Labor Statistics (PLS) ‘Employment Statistics’ (OES) data to determine the prevailing wages in a wide range of industries. The prevailing wage rate is defined as the average wage paid to workers who work similarly in a particular occupation in the geographical area of intended employment. The pay in OES practice is divided into four tiers or pay levels, which indicate the range of skills of those with experience from entry level.
Under the new rule, the OES minimum wage for foreign workers will increase at all four levels of skill and experience, but this increase is not as steep as in the now-defunct Interim Final Rules.
For example, entry-level wages for H-1B and PERM cases will increase from 17 percent to 35 percent for business and geographic location. This is just above the current wage minimum for capacity level 2. Under the interim final rules, the increase was so significant that entry-level wages were reduced by 45 per cent, under what is the minimum wage for capacity level 3.
Even if this rule is set to come into force within 60 days of its publication in the Federal Register, its impact will not be immediate. New York Cyrus Mehta, founder of an immigration law firm, told the TOI, “The new rule acknowledges that a sudden change in new wage levels will disrupt the economy and harm American employers, so the first increase will take place on July 1, 2021, a year and a half before the DOL gradually introduces new wages. ”
“In addition, for H-1B workers who were the beneficiaries of approved I-140 applications (for green cards) until October 8, 2021, the period for increased wages is a three-and-a-half year period for increased pay,” Mehta said.
Legal cases on the horizon: DOL took action to address concerns raised in the lawsuits by responding to public comments received after October 8, providing advance notice of the planned effective date and expanding its economic impact analysis. Challenges in court have not been dismissed by immigration lawyers.
“I doubt the new rule will stand, because at its core DOL still uses the OES payroll in ways not designed to be used. Kiruba Upadhyay told TOI.
According to Mehta, “Despite the phase, the increased wages will be artificial, they will not be compatible with market wages, and the new rule is a continuation of the stupid wage rule previously barred by the courts. Wages should reflect the market wages normally paid to American workers in the same industry. ”
Charles Guck, executive partner at Immigration Law Firm, one of the lawyers in the successful case filed by the University of Purdue and others, told the TOI, “We will amend our case to seek to rectify this lame attempt. . ”
Wexler summed it up: “Furthermore, with other terms finalized in the last days of the Trump administration, the Biden administration could place the payroll – to review its contents and determine whether it should come into force.