Here are some of the issues that are currently unresolved in the legislation. (1) Does the new 100% prevailing wage requirement apply to only H1b petitions or also to Labor Certifications? because there is reference to 212(a)(5)(A) dealing with prevailing wages in the Labor Certification context. The heading of Section 23 of the Reform Act reads "H1B Prevailing Wage Level", it may be expansive to include L/C prevailing wages since 212(p) deals with computation of prevailing wages for both H1Bs and L/Cs - both may be at 100% of the prevailing wage as of enactment. (2) Does the advanced degree exemption apply to current FY applications that are pending adjudication or only to new H1B petitions to be filed after 90 days? If it applies to
current pending adjudications, will new cap subject numbers be freed up for this FY? (3) Will USCIS redo form I-129 W to account for the new 20,000 exemption cap? Will this exemption only kick in for applicants who don't qualify under other exemptions such as higher education, 214(l), etc.? (4) How will DOL determine Level 2 and 3 for prevailing wage purposes? Will there be guidance or are petitioners expected to file for prevailing wage determinations with SWAs? (5) Here's a crude model of new prevailing wage levels, as follows: There will be at least 4 wages listed based upon experience, education and supervision. Wage 1 will be current Level 1 prevailing wage; Wage 2 will be Wage 1 + 1/3 of the difference between current level 1 and 2; Wage 3 will be Wage 1 + 2/3 of the difference between current level 1 and 2; Wage 4 will be Wage 1 + 3/3 of the difference or, in other words, Level 2. For those who disliked Math in grade school, here is an example: Current Level 1 is $60,000. Current Level 2 is $150,000. Difference between Level 1 and 2 is $90,000. 1/3 of $90,000= $30,000. New system: Wage 1= $60,000. Wage 2= $90,000 ($60,000 + $30,000 (1/3 of $90,000)). Wage 3 = $120,000 ($60,000 + $60,000 (2/3 of $90,000)). Wage 4 = $150,000 ($60,000 + $90,000 (3/3 of $90,000))
Salima Khakoo, Associate Attorney
Ingber and Aronson
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