If Donald Trump secures victory in the upcoming November election, an important H-1B visa wage rule from his administration will provide valuable insights into potential future U.S. immigration policy. Initially introduced in 2020, this rule aimed to increase the cost of hiring H-1B visa holders and employment-based immigrants in the American labour market. Although currently blocked on procedural grounds, its implications offer significant clues about Trump’s possible immigration agenda.
Overview of the H-1B Visa Wage Rule
In October 2020, the U.S. Department of Labor (DOL) introduced a rule raising the minimum wage employers must pay H-1B visa holders and employment-based immigrants. By law, these employers are required to pay foreign professionals either the prevailing wage or the actual wage paid to similar U.S. employees. While there was no change in legislation, a new regulation significantly increased the salaries for foreign-born scientists and engineers under the Trump administration.
Concerns and Implications for Employers
Immigration attorneys revealed that Trump officials had instructed the DOL to modify the mathematical formula used to determine prevailing wages. This alteration resulted in employers having to pay high-skilled foreign nationals much more than market wages. According to comparisons between private sector salary data and federal government wage determinations, it became evident that wages under the Trump rule were artificially inflated.
Kevin Miner of Fragomen noted: “The new DOL regulation artificially pushes the prevailing wage well above what the data shows it to be,” emphasizing that statistical data should dictate prevailing wages rather than political considerations.
Impact on Specific Occupations
A closer look revealed that implementing this rule might make hiring H-1B visa holders or sponsoring foreign nationals for permanent residence nearly impossible for many employers. An analysis by the National Foundation for American Policy found dramatic increases in required salaries:
- A Level 1 petroleum engineer saw salary requirements rise by 100%.
- Minimum annual salaries for some common occupations surged by 200% or more.
These findings indicate that if Trump wins in November, a similar approach to immigration policy focusing on elevating salary requirements could be expected.
Legal Battles over DOL Wage Rule and H-1B Visa Restrictions
The Department of Labor (DOL) wage rule, introduced by the Trump administration, was initially published as an “interim final” rule, a designation that left it more susceptible to legal challenges. However, on December 1, 2020, U.S. District Judge Jeffrey S. White vacated and set aside this wage rule, as well as a separate rule from the Department of Homeland Security that sought to restrict H-1B visas. Judge White stated that the Trump administration had “failed to show there was good cause to dispense with the rational and thoughtful discourse provided by the Administrative Procedure Act’s [APA] notice and comment requirements.”
In a subsequent attempt to rescue the DOL regulation, the Trump administration moved directly to implement a final rule in January 2021, just before leaving office. This final rule aimed to achieve the same objective as its predecessor – pricing H-1B visa holders and employment-based immigrants out of the U.S. labour market.
