Relief for employers in court’s H-1B ruling

On Behalf of | Jan 4, 2021 | Blog, Employment Law -- Employer |

A U.S. District Judge set aside a recent rule set by the U.S. Labor Department that mandated wage increases for H-1B visa workers. The departments of Homeland Security and Labor released a companion rule that was meant to narrow the types of jobs that could qualify for the visas in Pennsylvania and other states across the country.

The judge in the case ruled that the departments of Homeland Security and Labor had not shown evidence of the need to make changes to the visa program without notifying the public and giving a chance for comment. Employers in Pennsylvania that use the visa program may have sought alternatives to filing labor condition applications with the DOL because of the steep hike in required pay rates. Many employers held out and waited to see if the rules would take effect or if the courts would set them aside.

The DOL’s Employment and Training Administration is the sub-agency that issued the ruling. It has not commented publicly on the court’s decision or what next steps the sub-agency might take.

Options to keep wages close to pre-ruling levels

For many employers, the dramatic wage increases have made it impossible to employ H-1B workers. Desperate for alternatives, employers have found a couple of possible options. These options include:

  • Alternative wage survey – The alternative wage survey is a popular option because it gives employers a chance to show that the wage numbers put out by the DOL are not in line with actual wages. The alternative wage survey must show proof of wages for similarly employed workers within a certain timeframe using data from multiple employers from within the same geographic location.
  • Defer filing an extension of status – As the alternative wage survey has increased in popularity, wait times for survey data have increased from days to weeks, complicating the process. Some H-1B employers have put off filing an extension of status for as long as possible.
  • Promote visa holders to increase salaries – Still other employers have chosen to promote visa holders as a way to increase their salaries to meet the new requirements.

Getting help with H-1B concerns

With this new court ruling, however, employers may not have to comply with the new higher wage rules for H-1B employees under employment law. For employers with questions about H-1B visa employees, changes to DOL requirements or other concerns, there are attorneys with experience in employment law who can offer guidance and answer questions.