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DOL Substantially Increases H-1B Wage Requirements DOL Substantially Increases H-1B Wage Requirements

DOL Substantially Increases H-1B Wage Requirements

On October 8, 2020, the U.S. Department of Labor (DOL) published an interim final rule with an immediate effective date that significantly increases the prevailing wages for temporary foreign worker programs, which most notably includes the H-1B visa program. H-1B is the most common classification available to foreign professionals working in the United States, and it is also the most regulated, as it requires the employer to comply with several ongoing obligations unique to this category. Among these obligations is payment of a minimum salary meeting or exceeding a “prevailing wage” set by DOL based on the occupational classification and geographic area of employment. DOL asserts its historical wage methodology has potential to undermine wages of U.S. workers and has led to abuse of visa programs. Therefore, under the new rule, prevailing wage levels are now an average of approximately 40% higher for all occupations, which DOL claims will provide wage protections and strengthen H-1B and other foreign worker programs.

Employers sponsoring H-1B workers are now subject to these new wage obligations for new filings and may be required to significantly and unexpectedly increase employee salaries in order to comply with the prevailing wage requirements. However, a lawsuit was filed on October 16, 2020 in the U.S. District Court for the District of New Jersey that challenges the new rule and seeks a preliminary and permanent injunction. While the rule remains in effect pending a decision by the court, additional legal challenges are also expected, so the long-term viability of the rule is unknown.

Please contact Christl Glier, Jenifer Brown, or another member of the Ice Miller Immigration Practice to discuss H-1B and green card sponsorship strategies impacted by the new rule. 

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.
 
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