MUMBAI / BANGALORE: The U.S. Department of Labor (DOL), which has restored wages up to H-1B workers at all four wage tiers or tiers (representing the range of skills from entry-level to experienced), states that it will improve the accuracy of current wages paid to foreign workers, by aligning them with wages paid to U.S. workers with similar jobs.
These rules go into effect on October 8. All Employment Conditions Requests (LCA) submitted on or after this date will be subject to the new higher minimum wage standards.
DOL uses ‘Occupational Employment Statistics’ (OES) data from the Bureau of Labor Statistics (BLS) to determine prevailing wages in a wide range of occupations. The prevailing wage rate is defined as the average wage paid to similarly employed workers in a specific occupation in the geographic area of intended employment. The OES Prevailing Wage is subdivided into four salary tiers or tiers, representing the range of skills from entry level to experienced.
Under the new rule, current minimum wages at OES will increase significantly for foreign workers at all four skill and experience levels. For example, under current rules, the minimum wage for skill level I (entry level) is set at the 17th percentile of the average wage for the occupation. When the new regulation goes into effect, the entry level minimum will increase to the 45th percentile, just below what the minimum wage for Skill Level III is today, ”explains Mitch Wexler, California-based partner, in Fragomen, a global immigration law firm.
Yet immigration attorneys are quick to point out the flaws in its rules, which run to a whopping 157 pages. For example, you select the top 20 employers of H-1B workers, based on the number of work condition requests (LCAs) submitted. By the way, all these companies are in the IT or ITES space.
He then goes on to say that when many of the heaviest users of the H-1B program pay wages well above the prevailing wage, he suggests that prevailing wages are too low and therefore may be abused by other companies to replace workers. Americans with lower-wage foreign workers …
For example, in the case of Amazon, the average rate at which the offered salary exceeded the prevailing salary was almost 94% and this was in the cases 68%. In the case of Infosys, the rate was 6.53% seen in 11% of the cases.
Greg Siskind, founding partner of the immigration law firm of Siskind Susser, tweeted: “They don’t realize that a lot of H-1Bs are filed by small employers who don’t pay what Apple, Amazon and Salesforce pay. Furthermore, this rule affects other professions beyond the technological space, which the Department of Labor seems to think is the only profession affected ”.
Charles Kuck, managing partner at Kuck Baxter, an immigration law firm, told TOI: “There will be a major impact on the wages of H-1B workers, but especially in smaller companies that generally pay closer to the current wages. Big tech employers won’t even notice this regulation. ”
“The rules substantially modify current salary requirements to limit the availability of H-1B visas to the highest paid professionals, regardless of actual salary data for the labor market. The Trump administration is making sweeping changes to US immigration without the regulatory process. The enormous amount of resources that have been expended on litigation as a result of this administration’s anti-immigration policies is egregious and downright wasteful, ”says Snehal Batra, managing attorney at NPZ Law Group.
“The employer will have to specifically request a salary from the DOL, rather than selecting one, which will result in further delays. If the employer decides to select a salary from an independent survey, and if the requested salary turns out to be higher, the employer will have to pay the difference, ”explains Cyrus D. Mehta, a New York-based immigration attorney and founder of a law firm. of lawyers. .
In the context of the pandemic, Siskind notes: “Is the country already experiencing a massive shortage of doctors in the middle of a pandemic and then the DOL leaves this to us? Keep in mind that a quarter of all doctors coming out of residency programs have visas and will be affected by this rule in a big way. A large segment of US healthcare employers (such as inner city community health centers and rural hospitals) are unable to pay physicians at their contemplated wages! ”
“Current H-1B regulations already require employers to pay foreign workers the greater of the current wage or the actual wage paid by the company. By increasing required wages, the new rules will hurt all employers who attempt to hire workers. foreigners, but especially smaller businesses and firms that may not be able to meet the increased salary requirements, “said Stephen Yale-Loehr, professor of immigration legal practice at Cornell Law School.
“The DOL and DHS justify the new rules as a way to help American workers, but they can have the opposite effect. Businesses can choose to offshoot jobs abroad, hurting American workers.”
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