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Sanwar Ali: additional reporting and comments
The US Department of Labor (DoL) is requesting feedback from the public within the next 60 days on determining prevailing wage levels for various immigrant and non-immigrant work visas, including the coveted H1B visa. The US H1B visa is popular among Indian professionals looking to work in the US tech sector.
For certain US visa categories such as the H1B visa and E3 visa the employer needs to show that the prevailing wage will be paid. A prevailing wage request needs to be made by the employer, to the Department of Labor that is a time consuming process, which is currently taking the Department of Labor a number of months to deal with. Salary rates for certain US visa schemes is tightly regulated.
The request, published in the US federal register by the DoL’s Employment and Training Administration, follows a prior announcement made by the department that sought to implement an 18-month delay in the effective date of a final rule that would change the prevailing wage levels for certain immigrant and non-immigrant workers.
The final rule, first published in January 2021, affects employers looking to hire foreign workers on a permanent or temporary basis through certain immigrant visa programs or via non-immigrant visa categories, such as the H1B, H1B1 and E3 visa routes.
Prevailing wage validation
The H1B visa category is not based on nationality, whereas the E3 visa is open exclusively to citizens of Australia and the H1B1 visa is reserved for nationals of Chile and Singapore.
The delay in the final rule will reportedly give officials enough time to calculate and validate prevailing wage data covering specific occupations and geographic locations, while allowing for necessary system modifications and the opportunity to get public feedback.
The final rule has been carried over from the former Trump administration, which sought revisions to mandatory salaries after being defeated during a lengthy court battle over an initial version of the rule.
According to the DoL, the proposed delay to the rule will result in a reduction of transfer payments in the form of higher wages from employers to H1B employees.
Furthermore, the rule would delay the potential for ‘deadweight losses’ to occur in the event that requiring employers to pay a wage above what H1B workers are willing to accept results in H1B caps not being met, according to the DoL.
Cap always met
The DoL acknowledged that between the fiscal years of 2014 through to 2020, the annual H1B cap was reached within five business days.
In February, United States Citizenship and Immigration Services (USCIS), reported that it had received a sufficient number of petitions for the 2021 fiscal year. In the same month, the Biden administration said it would be delaying the wage policy of the Trump administration.
Instead, the US President announced that his administration would continue with the H1B visa lottery system up until December 31, 2021. It was reported that this was being done to allow more time to develop, test and implement the modifications needed for the registration system.
It was originally announced, by USCIS on January 7, that the H1B visa lottery system would be scrapped when deciding on successful H1B visa applicants.
Trump’s wage policy for H1B visas was due to come into effect on March 9, 2021.
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