For decades, immigration has been at the forefront of political debate. Central to that debate has been the question of whether foreign workers depress the wages of Americans. Most recently, the election of President Trump and his commitment to securing our borders and protecting U.S. workers have amplified the debate around the H-1B visa, a popular guest worker program that enables U.S. employers to sponsor highly-skilled foreign professionals for difficult-to-fill positions (usually in science, technology, engineering and mathematics fields).

On April 18, Trump signed the “Buy American, Hire American” Executive Order which, among other things, directed a reform of the H-1B program, “to help ensure that H-1B visas are awarded to the most skilled or highest paid petition beneficiaries,” purporting to “create higher wages and employment rates for workers in the United States” (Exec. Order No. 13788, 82 Fed. Reg. 18837 (Apr. 21, 2017)). This article provides an overview of the existing wage-related employer obligations in the context of H-1B visa sponsorship and examines whether the existing framework sufficiently protects the wages of U.S. workers. It will not, however, examine legal requirements pertaining to Willful Violators or H-1B Dependent Employers.

Section 214.2(h) of Title 8 of the Code of Federal Regulations (CFR) sets forth the regulatory framework for H-1B sponsorship. (Its regulations do not contain any wage-related provisions with the exception of Subpart (2)(F)(1), providing that an agent performing the function of an employer must guarantee wages and other terms and conditions of employment by contractual agreement with the beneficiary of the petition. In addition to the rules set forth in Title 8, the petitioning employer must also navigate the Department of Labor regulations in CFR Title 20.) As set forth in these rules, in order to sponsor a foreign worker for an H-1B visa, the petitioning U.S. employer must first obtain a certification from the U.S. Department of Labor (DOL) that the employer has filed a labor condition application in the occupational specialty in which the foreign worker will be employed (8 CFR 214.2(h)(4)(B)(1)). The Labor Condition Application (LCA) is an electronic application filed by the petitioning employer or the employer's authorized agent or representative, containing information regarding the nature of the position for which the foreign worker is being sponsored, as well as a number of important attestations. Among other things, the petitioning employer must attest under penalty of perjury that the employer will pay the H-1B worker the “required wage rate” (20 CFR 655.731). The required wage rate means the rate of pay which is the higher of (1) the actual wage for the specific employment in question or (2) the prevailing wage rate (20 CFR 655.715). The petitioning employer is then required to maintain detailed documentation in the form of a Public Access File showing compliance with the wage requirements (20 CFR 655.760(a) and (a)(1)).