At the Last Minute, Department of Labor Protects American Workers

FAIR Take | January 2021

Even as the Trump Administration comes to a close, the agencies responsible for setting immigration policy continue to make changes to our broken immigration system. On January 12, the Department of Labor (DOL) announced the publication of a new rule that will protect the wages and job opportunities of American workers by reforming the way they set wages for foreign guestworkers.

In a press release, outgoing Labor Secretary Eugene Scalia remarked that these changes will “ensure that these important foreign worker programs function as Congress intended, while securing American workers’ opportunities for stable, good-paying jobs.” Specifically, the final rule changes the way that DOL calculates wages set for three types of skilled nonimmigrant guestworkers: H-1B, H-1B1 (H-1B carveout for nationals of Singapore and Chile), and E-3 (skilled workers from Australia).

In the DOL’s own words, the new rule strengthens wage protections by “updating the computation of prevailing wage levels under the existing four-tier wage structure to better reflect the actual wages earned by U.S. workers similarly employed to foreign workers.” These wage tiers had not changed in some time, despite continued wage growth across many STEM sectors. This means that employers could certify H-1B workers at wages well below what actual wage averages reflect across the country for certain positions. By updating those wage categories for guestworkers, DOL ensures that employers cannot use H-1B workers and other guestworker programs as a way to save money on labor costs.

Why is this change important? When employers petition for guestworkers in any of these programs, they first apply for certification through DOL. They fill out an application with DOL describing the vacant position, demonstrate their supposed need for a guestworker, and list the proposed salary for the guestworker. If this sounds like a complicated process, that’s because it is. There is an entire legal industry – a very lucrative one, at that – built on helping corporations and businesses navigate the complexities of hiring temporary foreign workers.

For years, advocates of immigration reform highlighted the danger that these guestworkers posed to Americans in the workforce. DOL often certified H-1B workers at wages far below what Americans with similar qualifications earned, undercutting American wages and creating perverse incentives for employers to hire cheaper guestworkers instead of Americans. Some of the worst offenders have been Big Tech companies including Facebook, Google, and Amazon.

FAIR has been at the forefront of this issue, and worked closely with the outgoing Trump Administration to introduce many of these reforms, including the changes to H-1B visa allocation that the Department of Homeland Security (DHS) announced recently. Although the administration should have introduced these changes much earlier, FAIR applauds these reforms to the prevailing wage calculation as a win for American workers and a blow to Big Tech and their lobbyists.