MUMBAI: The various immigration agencies of the US government in the recently rolled out ‘fall agenda’ have reiterated their intention to move ahead with a rule to raise the prevailing wage rates for H-1B and green card holders and also to modernize the H- 1B program, including provisions for safeguards to prevent its abuse.
“A final prevailing wage rule had been scheduled to take effect on November 14, 2022. However, a federal court had vacated this Trump-era regulation, with the consent of the Department of Labor (DOL). Now, dol is promulgating a new prevailing wage regulation, taking into consideration the public comments it received earlier. Publication of the draft new proposal is currently scheduled for September, 2023,” explains Mitch Wexler, partner at Fragomen, a global immigration law firm. One of the action points in US President Joe Biden‘s pre-election manifesto was to ‘Curb exploitation of foreign workers, by ensuring that employers cannot hire below the market rate’.
Bi-annually, various government agencies indicate their immediate and long-term action plans. Immigration related action plans are typically outlined by agencies such as the Department of Homeland Security (dhs), the Department of Labor (DOL) and the Department of State (DOS, Post publication of the draft proposals, typically a 30-60 day period is kept open for public comments. After this stage, the entire process up to finalization of the proposal takes a few more months.
The DHS continues to pursue a proposed rule to modernize the H-1B program. This rule is expected to redefine the H-1B employer-employee relationship and at the same time provide flexibility to start-up entrepreneurs. It also contains a proposed plan of action to implement new requirements and guidelines for site visits by the regulatory authorities. The E-registration process is also to be bolstered to mitigate misuse and fraud. This proposed regulation has been rescheduled from its earlier target date of May 2023, to October 2023.
“Certain aspects, such as DHS clarifying when a material change to an H-1B employment occurs which in turn requires an amended petition to be filed; or streamlining the process of notification to US Citizenship and Immigration Services (USCIS) when an H-1B employee changes to a new worksite location; will ease the administrative process for US employers,” adds Wexler.
For now, DOS appears to have abandoned its plan to finalize a rule that would have eliminated use of the B-1 business visitor category in lieu of the H-1B visa category.

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