New H1B Visa Wage Level Rule – Higher Salary and Approval Only for 1 Yr

H1B third-party client site approval only for 1 year. Full-time US employer H1B gets 3 years. Wage level increases and employer-employee relationship gets strict.

The new H1B approval criteria rules have been published by DHS and will be applicable within 60 days unless challenged and stayed by the court.

The date of the start is on the date it has been officially published in the federal register 8 Oct 2020.

The new rules will apply to all types of new H1B applications:

H1B Extensions.
H1B Transfer.
H1B Amendments.
H1B Change of Status and new Lottery applications.
The existing pending (already filed before the rule implementation date) and approved applications will not be reopened.

The agenda to change H1B visa eligibility criteria was put on the fast track after Trump’s executive order signed on Aug 3 even though it was pending for the last 2 years.

There are four wage levels – Level 1, 2, 3, and 4.

Those Wage levels are based on 17th, 34th, 50th, and 67th percentiles of total salary distribution for a specific job at a specific location.

Computer Systems Analyst Wage Level 1 in San Jose will be different from the Wage Level 1 in Little Rock, Arkansas.

So, how much do you need to get paid to get H1B Visa approval now?

 

The above data is for Computer Systems Analyst located at San Jose, California.

  • Now – Wage Level 1 = Around $62,000
  • New – Wage Level 1 = Around $85,000

That’s a huge jump!

If your plan to file an H1B Visa extension on Oct 10, your employer would have to increase your wages to meet the new higher wage level.

How to Find Your New H1B Visa Salary?

Use the following steps to find the New-Wage Level (approximate)

  • Go to OES Wage Data Page (for California)
  • Find Your SOC Code (like this one for Computer Related Jobs)
  • Follow the link to find the 10, 25, 50, 75 and 90% wage distribution

Summary: New H1B Visa Wage Rule

  • Employers need to pay more to meet the new minimum wage level
  • Applies to H1B transfers, Extensions as well
  • Pending Applications are not impacted
  • New H1B visa wage levels Effective from Oct 8, 2020
  • Lawsuits may be filed for such a drastic change without any advanced notice to employers
  • The DOL has published their advance copy of the regulation at https://www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/DOL-Interim-Final-Rule-Strengthening-Wage-Protections-for-the-Temporary-and-Permanent-Employment-of-Certain-Aliens-in-the-United-States.pdf

    Ultimately the DOL regulation changes the prevailing wage levels for LCAs and PERMs as follows:

    The existing wage levels – set at approximately the 17th, 34th, 50th, and 67th percentiles – will be adjusted to the 45th, 62nd, 78th, and 95th percentiles.

     

    The actual DOL regulation will be published in a few days and will take effect 60 days immediately after publication, which is unusual. It is unclear how quickly the Foreign Labor Certification Data Center will be able to update its Online Wage Library with the newly calculated wage levels. DOL normally updates prevailing wage calculations once a year and the new wages normally take effect on July 1st each year. We don’t know if DOL will wait until July 1st to make this change or if they will somehow implement it before the normal update in July.

    The new regulation will not impact currently approved LCAs or PERMs. It will impact LCAs submitted on or after the date the regulation takes effect. It will also impact prevailing wage requests for PERM that are pending on the date the regulation takes effect.  This means that the new wage levels are planned to be applied to prevailing wage requests that have already been filed.

     

    DOL provides the following “good cause” argument in favor of implement these wage changes without notice and comment:

    First, “the shock to the labor market caused by the widespread unemployment resulting from the
    coronavirus public health emergency has created exigent circumstances that threaten immediate
    harm to the wages and job prospects of U.S. workers.”

    Second, “providing the public an opportunity to comment before the adjustments to the wage
    levels take effect is contrary to the public interest insofar as it would impede the Department’s
    ability to solve the problems this interim final rule is meant to address. Advance notice of the
    intended changes would create an opportunity, and the incentives to use it, for employers to
    attempt to evade the adjusted wage requirements.”

    Given the fact that neither of these regulations went through public comment, it is very likely that impacted businesses and business groups will file lawsuits with requests for preliminary injunctions seeking to block the changes before they can take effect.

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