51 proving that there was a shortage of U.S. workers. At the time there was a known shortage of I.T. workers, so Congress only mandated that the position require a 4-year degree related to the duties of the position and that wages would not adversely affect U.S. workers. Congress also set an annual quota on the number of new H-1B visa holders. » It stands to reason that the Courts may find that Congress alone can make substantive changes to the H-1B program, and therefore the $100,000 filing fee is an impermissible attempt to change the basic structure of the program. » The EO also directs DOL to review and prioritize H-1B petitions and visas for the most highly skilled and highly paid workers. The EO cites the H-1B Labor Condition Application (LCA) requirement as outlined in 8 U.S.C. 1182(n). The congressional statute cited in the EO requires that H-1B wages be on par with what U.S. workers are being paid for the same position and job requirements and that the H-1B wage not adversely impact U.S. worker wages. » It remains to be seen how this will play out. Since DOL sets the 4 level prevailing wage already, the presumption is they are already accurate and protecting U.S. workers. https://flag.dol.gov/wage-data/wage-search » Limiting the H-1B program to only the highest paid and highest skilled workers would seem to thwart the intent of Congress which limited the H-1B program to professional occupations involving at least a relevant 4 year degree. Therefore this area seems ripe for litigation as Congress wrote in the statute that the program must protect American wages but it did not require that only the highest skilled and highest paid workers (Level 4) be accepted. » It’s also possible that DOL may start commencing more H-1B wage and hour audits to determine if employers are paying at least what the agency believes is the correct prevailing wage level for the position. Conclusion Despite the great uncertainty in the first 24 hours after the EO was signed, employers can now take comfort that their current H-1B employees should be unaffected by the order. The intent of the E.O. is primarily to stem the future flow of I.T. workers from overseas, which the Administration feels causes U.S. wages to drop and is leading to rising unemployment in this sector. Also, if the wage aspects of the EO withstand a court challenge, then employers can expect to pay higher wages to H-1B workers in the future.
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