Legislative lowdown: DOL proposes higher minimum wages for some foreign-born workers, including H-1B holders

The Department of Labor (DOL) is seeking to increase the minimum wage levels employers must pay to foreign-born workers they’re hiring through visas such as the H-1B program and other labor certifications.

A proposed rule issued by the DOL on Mar. 26 would change the way prevailing wage levels for workers hired through such programs are calculated. The goal is to “help ensure that employers pay foreign workers wages that reflect the real market value of their labor, in addition to protecting the wages and job opportunities of American workers,” Labor Secretary Lori Chavez-DeRemer said in a statement.

Here’s what HR leaders should know about the proposal, which is part of a broader effort by the Trump administration to restrict employers’ ability to hire foreign-born talent.

How the DOL wants to change prevailing wages. Currently employers that want to hire workers through the H-1B, H-1B1, or E-3 visa programs must pay them either the prevailing wage rate based on the occupation they will hold, or the actual wage level that employees in a similar position earn—whichever rate is higher.

Businesses seeking a permanent labor certification for immigrant workers must similarly certify that they’re paying them the prevailing wage.

The recently proposed DOL rule seeks to raise the thresholds that determine the prevailing wage rate for workers of different skill levels, based on a survey conducted by the Occupational Employment and Wage Statistics (OEWS) office.

Employers would be required to pay Llevel I, or entry-level, workers a salary equivalent to the 34th percentile of OEWS wage data, up from the 17th percentile currently, under the DOL proposal. The DOL proposed increasing wage thresholds for Level II–-Level IV workers as well, with the highest-skilled worker rates rising from the 67th to 88th percentile of OEWS data.

What this means for HR. If this rule is approved, employers will likely have to pay foreign workers higher salaries in order to sponsor them. The proposal is expected to increase average certified wages for workers by $14,000 annually, an attorney with law firm Ogletree Deakins told SHRM.

The Trump administration has issued a number of proposals specifically targeting the H-1B visa program, which facilitates recruitment of foreign-born talent in STEM roles, and is commonly used by companies in the tech sector.

Employers must now pay a $100,000 fee for new H-1B visa petitions, per a proclamation issued last September. US Citizenship and Immigration Services is also giving greater weight to higher-paid workers in this year’s H-1B lottery.

White House officials argue that programs such as the H-1B visa give foreign-born workers a leg up over domestic talent, as their labor is cheaper. It is difficult to assess whether such claims hold true, though, HR Brew previously reported.