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Never Fear: The Old H-1(b) Wage Rules Are Still In Effect

by Linda M. Keck, Esq.

October 1, 2003 saw the sunset of the provisions at INA 214(c)(9)(A), leading to some immediate and significant changes to the H-1(b) program. Some articles written on the subject have claimed that companies now have a free hand in setting employee salaries under the H-1(b) scheme. The truth, however, is quite a bit different. The purpose of this article is to summarize the new rules and their effect and to debunk the myth that employers of H-1(b) workers no longer have to worry about prevailing wage rules.

No More $1000 Training Fee

In 2000, Congress increased the amount of fees charged to employers filing petitions for the employment of H-1(b) workers. An additional $1000 training fee was required to be paid on top of the $130 filing fee. Now, only the $130 filing fee remains. For cost sensitive companies, it is a great time to file H-1s. For those companies who have already set budgets, the "extra" $1000 can be utilized to submit an application under the premium processing program, which guarantees a response from immigration within 15 calendar days.

H-1(b) Cap

With the sunsetting provisions, the H-1(b) cap will revert to 65,000 from its prior level of 195,000. The USCIS (formerly known as INS) fiscal year runs from October 1st to September 30th. Each year only a set number of new H-1s may be issued; this is known as the cap. The drop in the cap from the 195,000 level to the 65,000 level is clearly a significant one. To put the numbers in perspective, there were 78,000 new H-1s issued last fiscal year. Given that last year the economy (and therfore hiring) was fairly slow, we are sure to reach the 65,000 cap this year. We are predicting that the cap will be reached and there will no more H-1s available as early as Spring 2004.

Removal of Dependent Employer Obligations

The dependent employer rules placed additional U.S worker recruitment and non-displacement obligations on those employers whose H-1 workforce exceeded 15%. These rules were only effective through October 1, 2003. Although the rules will sunset, the Labor Condition Applications (LCA) containing the recruitment and displacement attestations will remain in effect with regard to those obligations as long as the H-1 worker is employed pursuant to that LCA.

So where did the myth come from? Under the, now old, dependent employer rules, the additional recruitment and displacement attestestations did not apply if the H-1 worker held a master's or higher degree in a specialty related to the intended employment or if the H-1 worker received wages of at least $60,000 annually. Many employers chose to raise wages to the $60,000 level to avoid the extra work and time associated with the attestations. It is true that these employers may now drop back from the $60,000 wage level, but they, and all other employers of H-1 workers, must still meet and pay H-1 workers the prevailing wage for the job in the area of intended employment.

About The Author

Linda M. Keck, Esq. is an associate at Hammond Law Group LLC. Ms. Keck practices in the field of business immigration law and counsels various IT clients on H-1 compliance. Ms. Keck can be reached at:

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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