Thursday 30 March, 2017
Headline

No, Zoe Lofgren’s proposed H1-B reform bill does not call for a new mandatory minimum salary of $132,000

BY ASHWIN SHARMA*

There appears to be widespread confusion, primarily among dozens of Indian news media outlets regarding U.S. Rep. Zoe Lofgren (D-Calif.) introduction of new legislation last week entitled “High-Skilled Integrity and Fairness Act of 2017” that would, among other actions, raise the salary level at which H-1B dependent employer are exempt from attestation requirements to roughly $132,000 and eliminate the Master’s Degree exemption for dependent employers. Most of these news articles are reporting that the minimum mandatory salary paid to an H-1B worker would be increased to $132,000, but this is incorrect.

While Lofgren’s bill proposes some changes (reducing the prevailing wage levels to three and modifying the wage calculation) which would likely increase H-1B wages to a certain degree, this is not unusual as the prevailing wage levels normally do increase every July 1.  The cited $132,000 figure itself though is an increase to the present “dependent wage exemption level of $60,000” which hasn’t increased since 1998. By way of background, an employer is considered H-1B-dependent if it has:

  • 25 or fewer full-time equivalent employees and at least eight H-1B nonimmigrant workers; or
  • 26 – 50 full-time equivalent employees and at least 13 H-1B nonimmigrant workers; or
  •  51 or more full-time equivalent employees of whom 15 percent or more are H-1B
    nonimmigrant workers.

Presently, if an employer is H-1B dependent, then they must engage in three additional attestations (in addition to the four standard attestations) which include:

(i) They have not displaced U.S. workers, either directly on their worksites or indirectly (“secondarily”) at the worksite of another employer to whom H-1B workers are assigned, in the ninety-day period before they filed the H-1B petition;
(ii) They will not displace U.S. workers during the ninety-day period after that filing;
(iii) They have sought to recruit U.S. workers with offers of the same or higher wages, and of the same or better working conditions, as that they offered prospective H-1B workers.

The above additional attestations are not applicable, however, if an H-1B dependent employer is filing a petition for an exempt H-1B nonimmigrant, in other words, an H-1B worker who meets one of the following statutory standards:

  • Receives $60,000 annual wages; or
  • Has attained a master’s or higher degree (or its equivalent) in a specialty related to the intended H-1B employment.

Thus Lofgren’s new legislation would eliminate the Master’s or higher degree exemption, and increase the exemption level from $60,000 to roughly $132,000.  It would not require a new minimum wage of $130,000 to be paid to each and every H-1B worker in the U.S.


Update 02/01/2017: The Washington Post, one of the news organizations that had incorrectly covered this story just updated its article; it now includes the line: “This story has been corrected to remove reference to higher minimum salary, as the figure applies only to when reporting exemptions are triggered, not actual wages.”

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Attorney Ashwin Sharma is licensed in Florida and practices U.S. Immigration and Entertainment Law.  Because U.S. Immigration Law is Federal in nature, Attorney Sharma represents clients located throughout the United States, including individuals, Fortune 500 corporations, hospital systems, professional & religious workers, film actors, directors, producers and musicians to file immigration cases before USCIS, such as H-1B, L-1, E-2, E-3 work visas, fiancé petitions, employment petitions, marriage and family based green cards, as well as answers to complex Requests for Evidence/queries and appeals.

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