Trump H-1B Rule Could Have Raised Visa Wages. Now It’s Dead.

In the closing months of the Trump administration, the Department of Labor (DOL) proposed a rule that would assign H-1B visas based on wages, as opposed to the current lottery system. Although the Biden administration seemed interested in continuing some version of the plan, a recent court ruling may have killed it—and perhaps lessened the overall chances of tethering the H-1B to higher salaries. 

The DOL rule would have raised the lowest possible wages that companies could have offered for workers on the H-1B, H-1B1, and E3 visas. The goal, added a DOL press release at the time, was to “improve the accuracy of prevailing wages paid to foreign workers by bringing them in line with the wages paid to similarly employed U.S. workers.” A few months after Biden took office, the DOL sought public input on fair H-1B wage levels, indicating that the concept was still alive in the halls of government, although it delayed implementation of the actual Trump-era rule until November 2022.

But now Forbes reports that the DOL rule is dead in court, citing a client alert from Berry Appleman & Leiden, an immigration-centric law firm. “DOL did not oppose vacating the rule because it had already significantly delayed the effective date to allow time to consider concerns raised in the litigation and regulatory comments,” read the alert. “The agency is in the process of reviewing information it received in response to a Request for Information on prevailing wage methodology.”

The alert added: “Now that the DOL wage rule has been vacated, the matter will go back to the agency for further review and consideration.”

The rumblings of an H-1B wage adjustment continue. For example, Biden’s U.S. Citizenship Act of 2021 would prioritize visas based on wages, and give both the Secretaries of Homeland Security and Labor the ability to determine the appropriate wage levels. As with much legislation, though, it’s hard to tell what will pass until an actual vote.

Tethering H-1Bs to higher wages would probably not have a huge impact on companies that utilize the visa to draw highly specialized talent from overseas. After all, these companies are already prepared to pay extraordinary salaries for hard-to-find skills. But higher minimum wages would potentially wreck the budgets of the consulting and business-services firms that apply for many thousands of H-1B visas every year, then subcontract those H-1B workers to other companies. 

9 Responses to “Trump H-1B Rule Could Have Raised Visa Wages. Now It’s Dead.”

  1. Jake Leone

    I think you are confusing things. There were 2 completely different changes proposed by the Trump administration:

    1 – Raise the minimum salaries for H-1b workers (to a higher percentile).

    2 – A completely different order to allocate H-1b visas based upon salary. Where higher salaries would have a better chance of making the the cutoff point.

    Immigration lawyers, unanimously, hate the 2nd change. Because it would eliminate a lot of the redundant H-1b applications that are made by Offshore Outsourcing companies. The immigration lawyers will all say, this was a dumb idea, but what is the alternative? The alternative is a brain-dead lottery. A brain-dead lottery, that is gamed by Offshore Outsourcing companies putting in redundant H-1b applications (dozens for the same worker). This is so bad, that a group of 500+ people, working on OPT and/or waiting for an H-1b visa, have filed a lawsuit to stop the idiotic lottery.

    Yet, no matter how idiotic that lottery was, Biden is keeping it. And the reason could be anything from massive campaign contributions and/or just because of spite against former President Trump.

    Any affect this change (#2) would have had on non-profits, could have been nullified by allowing non-profits to use a random chance lottery. In fact, this change would have increased the chances of non-profits, because the redundant H-1b applications will all immediately disappear.

    As for the #1, the general pay raise. That wouldn’t even be necessary if we implemented an H-1b allocation based upon salary (instead of a random chance, brain-dead, lottery). But, nevertheless, just the thought of raising the wages of H-1b workers, is so abhorrent to the tech industry, that they all banded together to stop it.

    Proving, this is all about keeping wages for H-1b workers and the rest as low as possible.

    Keep in mind, in DOJ vs Facebook. Facebook admits it finds 30x more (30 out of hundreds of resumes received), STEM/IT workers than it can hire. Facebook admits that it would hire these local STEM/IT people, if they had more STEM/IT jobs. Facebook and rest of Big Tech are having no issues finding people, they routinely find 30x more local STEM/IT people than they can hire, and this have been true for decades. And the reason why is simple, people working in startups would easily switch to a more stable tech company, if given the chance.

    Facebook and Big Tech know they can lie all they want to the press and public about a mythical worker shortage. But they couldn’t lie to Federal Investigators about how many fully qualified STEM/IT people they are finding per job ad, without risking a Federal obstruction of Justice charge. The same charge that put Martha Stewart, a billionaire, in jail. If you or anyone you know has any information that actually counters this, you should bring it to the attention of the U.S. DOJ, immediately.

    Facebook didn’t contest these charges in its response to the court. Facebook tried to get the case dismissed on jurisdiction only, and that failed. Now Facebook is facing a Federal lawsuit on 2600+ cases of discrimination, against local STEM/IT workers. Look for Facebook to try to settle this out of court, to avoid deposition, but realize that this case is now worth at least 260 million dollars based upon similar, prior, settlements with the Federal government.

  2. I don’t see how raising the minimum salaries for H1B holders would help the American worker. Unless the idea is that the company will now hire Americans because we work cheaper. Raising H1B salaries will simply increase the desire of those workers to come here to work.

    • Jake Leone

      The number of general H-1b visas is fixed. 65k for those with bachelors, 20k more for those with a masters degree or higher.

      The reason why increasing H-1b wages (and especially changing from a brain-dead lottery to a salary allocation). Is that instead having an H-1b system that is attractive to Offshore Outsourcing companies, we will instead have a system that will attract talent based upon a measurement (salary) that actually relates to skill level.

      Offshore Outsourcing companies use the H-1b visa to bring in fresher trainees on the H-1b visa. Offshore Outsourcing companies game the H-1b system, and wind up with half of the H-1b visas each year. Offshore Outsourcing companies pay the lowest salaries of all the H-1b visa using companies. Offshore Outsourcing companies need that low salary, so they can under-cut the domestic U.S. labor market. And most importantly (and the clue is in the name).

      Offshore Outsourcing companies remove entire departments, and all supporting jobs, to India.

      Offshore Outsourcing companies simply copy existing technology, they originate nothing, they just increase corporate profits which are then hidden offshore in tax haven countries.

      Now, I am an experienced workers, with a lot of domain experience. I have absolutely no reason to advocate for this change. The way I see it, the current system traps people in the OPT program (because they can’t get an H-1b visa). The current system gives half the H-1b visas to Offshore Outsourcing companies, which specialize in copying scripted jobs in Accounting, payroll, HR, customer service, db management… Imagine if instead, we didn’t give away (idiotically) half the H-1b visas to Offshore Outsourcing companies, by having a ridiculously dumb lottery that is easily gamed.

      Right off the mark, 3/4 of the H-1b applications would just disappear. Because the Offshore Outsourcing companies are stuffing in dozens of redundant H-1b applications for the same worker (see the lawsuit brought by foreign OPT workers challenging the H-1b lottery for more information on this). So in just 2 years, the chances of getting an H-1b visa would go from a 1-in-4 chance, to 1-in-2 chance, and then in the second year, every H-1b application would be filled.

      Then I would start to see real competition for my job. Because my company would start raising H-1b salaries so that people in Europe and Israel could compete for my job. And there a lot of domain experts in Europe and Israel, who can do my job, and they have decades of experience.

      So in that sense, for me specifically, I am just greasing my own guillotine by advocating for a change from an idiotic lottery to a salary based allocation (or even a higher minimum H-1b salary).

      But overall, the U.S. economy would be greatly benefited by stopping the parasitization of scripted positions by Offshore Outsourcing companies. It is exactly that parasitization that caused the incredibly slow recovery we had under Obama. Low H-1b salaries and the idiotic H-1b lottery created this situation.

      Biden, for no other reason then his selfish emotions, basically a zero-IQ response, just cancelled these 2 executive orders. And you have to question this massively, because if Biden refuses to think about problems and issues and just uses the idiotic, backward, reasoning that “It wrong because Trump did it first.”, then we are in real trouble dude in the White House.

      A President must not be afraid to think dynamically and must not get trapped in his own emotions, that is the deepest kind of insanity and stubbornness, that can cause problems in a crisis. These 2 changes, were supported by both Democrats and Republicans. 2 Senators Durbin (D) and Grassely (R) wrote a joint letter explaining why Biden should keep Trump’s change from an idiotic lottery to a salary based allocation. Biden just ignored it. And to everyone else (except for immigration lawyers, who unanimously oppose this chance) it is the most sensible change possible.

      This Trump change, is even supported by foreign OPT workers here in the U.S. and H-1b candidates waiting abroad. Supported so much that they have filed a lawsuit to get the idiotic H-1b lottery removed.

      Think just how insane this is. The White House and every Immigration Lawyer in the country wants to KEEP the idiotic lottery. But foreign workers, here in the United States, trying to get an H-1b visa, absolutely are disgusted by the H-1b lottery.

      That is just insane to the core, and we can thank Joe Biden’s selfish emotional and stubborn zero-IQ thinking for this situation.

    • jake Leone

      These changes were supported by Democrats and Republicans. Durbin (D) and Grassely (R) wrote a letter to Biden asking him to keep Trump’s change from an idiotic lottery to a salary based allocation of H-1b visas.

      This is nothing but stubborn hatred of Trump, and a refusal to even think about an issue.

      This lottery is killing the chances of people here on an OPT and/or others waiting for an H-1b visa. So much so, that 500+ foreign workers filed a lawsuit asking that the H-1b lottery be removed. Biden is keeping the brain-dead lottery, which matches his brain-dead emotional response to these completely sensible and equitable changes which happened to be made by someone Biden hates.

      And Biden is dragging the whole country (and thousands of OPT workers) down the hole with his hate.

    • Milly

      Sure. And Biden went ahead and allowed H1bs to come to the country from India – where there are single-digit vaccination rates, chaotic medical care and the covid Delta variant.
      Consequently we now have the covid Delta variant all over the US. Is this Biden being concerned for Americans or Biden getting benefits for his family from corporations or Biden just being oppositional? It is not good.

  3. Scott

    How does a law firm representing others anonymously get to have an impact on our federal immigration policy? Who are the entities behind this push?

    “prepared to pay extraordinary salaries for hard-to-find skills” yet the overwhelming majority of visas are allocated to entry-level positions.

    This is nothing more than a scam for outsourcing chop shops to import cheap labor from developing countries. Well, from one particular developing country that now accounts for 3/4 of the h1b Visas.

  4. The H1B Visa for specialized skills was launched in 1990. It is unbelievable that even today we are issuing H1B visa in a bigger number.
    Don’t our college graduates with CS degree deserve better jobs and pay. How the government is expecting students to repay the loans?