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Labor Department Seeking H-1B Wages Input as Trump Rule Waits

April 1, 2021, 1:59 PM

The U.S. Labor Department is asking the public to weigh in on the best methodology and data to use in updating minimum wage requirements for specialty occupation visa holders.

The request for information, released Thursday, is the latest in a series of actions the Biden administration has taken to delay and potentially revise a final H-1B wage rule issued at the eleventh hour by the Trump administration. Opponents of the Trump prevailing wages rule said the increases were too high and didn’t correspond to the market pay.

The rule’s effective date has been delayed until November 2022 to give the DOL’s Employment and Training Administration “a sufficient amount of time to thoroughly consider the legal and policy issues raised in the rule.”

At the heart of the issue are the four tiers of wages that an employer must pay to H-1B workers under the guest-worker program. To date, the department has used Occupational Employment Statistics Report data from the Bureau of Labor Statistics to determine the appropriate wage rate by the job and region where the visa holder will be employed.

Critics of the visa program say the current pay system is vulnerable to abuse by employers who seek to pay foreign workers less than their U.S. counterparts.

The Trump updates to the prevailing wages were roundly criticized in public comments to the rule, and were blocked by federal judges in Washington and California who concluded that the DOL hadn’t followed proper notice-and-comment rulemaking procedure when it overhauled the visa program’s pay scheme.

The Labor Department said it’s now looking for input on how to revise how prevailing wage levels are computed “in a manner that more effectively ensures the employment of certain immigrant and nonimmigrant workers does not adversely affect the wages of U.S. workers similarly employed.”

Comments are due within 60 days of the notice’s Wednesday publication in the Federal Register.

To contact the reporter on this story: Genevieve Douglas in Washington at gdouglas@bloomberglaw.com

To contact the editors responsible for this story: Andrew Harris at aharris@bloomberglaw.com; Travis Tritten at ttritten@bgov.com

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