In a much-anticipated judgement, a US District Court in Northern District of California has ordered to set aside the DOL ruling regarding higher wage requirements for H1-B visa petitioners.
In October 2020, the DHS had published a regulation that sought to significantly increase the base salary of all foreign workers to be eligible for applying for the H1-B work visa. This was meant to become effective by December 7, 2020. A federal judge has overturned this on the grounds that both DHS and DOL did not follow due process to issue and implement these requirements.
What Is The Wage Based H1-B Lottery All About?
Here’re the details of DOL’s Proposal
What The US Federal Court Said About Higher Wages For H1-B Visa Holders
The US District court has cancelled any new rulings that will impact salaries of H1-B applicants. The DOL rule had intended to implement the following changes to the prevailing wage levels:
|Prevailing Wage Level||Current Wage Percentile||New Proposed Wage Percentile|
|Level I||17th Percentile||45th Percentile|
|Level II||34th Percentile||62nd Percentile|
|Level III||50th Percentile||78th Percentile|
|Level III||67th Percentile||95th Percentile|
In a lawsuit by the US Chamber of Commerce, the courts have ruled out these changes based on the following –
- DHS and DOL did not follow due process in issuing these rules, per the Administrative Procedure Act (APA);
- There is no statute supporting these wage level changes;
- DOL did not follow the required process of providing sufficient notice period and comment period before announcing the implementation of wage level changes by December 7, 2020;
- An exception to the comment period is allowed only if here is an emergency and there is real harm to life, property or public safety. None was applicable to the wage change ruling;
- DHS’ claim that Covid had caused unemployment and that foreign workers were taking up jobs is unsubstantiated;
- Unemployment in all job categories is too much of a generalization and cannot be applied to H1-B related occupations as unemployment therein is the least and unrelated to the pandemic; unemployment rate in H1-B related jobs has gone down even lower today compare to other occupations.
Next Steps For H1-B Dependent Petitioners
Since the US courts have ruled out the hike in wage levels, employers can continue using the current prevailing wages as shown in the table above.
Since neither DHS nor DOL have commented upon the court’s ruling yet, it is expected that they will accept the court’s ruling and refrain from implementing the wage level changes to the H1-B program.
Alternately, until President-elect Joe Biden takes over, President Trump’s government might appeal the decision and challenge the courts again this time in Supreme court.
It is also possible that the DOL might just amend the missing aspect and follow due process of Notice and Comment Period to pass these regulations anyway.
It is worth waiting and watching how the next few steps of action will unfold between the courts and DHS. Stay tuned to this space for the latest updates as it happens.