H-1B salary proposal: which employers would be affected?

The proposal in plain English

The introduced bills would replace the fixed $60,000 annual salary test in the relevant exemption with a threshold tied to twice the most recently calculated national average wage index. That would make the salary test move with the specified index instead of remaining a fixed dollar amount.

H.R. 10799 is the House bill; S. 5638 is the Senate bill. Both are titled the Protecting American Workers Through H-1B Modernization Act. Their introduced texts amend the wage limb of the exemption, rather than setting a blanket minimum salary for the entire H-1B program.

What the exemption does today

Certain employers face additional H-1B obligations concerning recruitment and displacement of U.S. workers. These include H-1B-dependent employers and employers covered by the willful-violator provisions.

Under the current regulation, those additional obligations do not apply to an LCA used only for exempt H-1B workers. LCA means Labor Condition Application, the employer’s filing with the Department of Labor. A worker can qualify through the salary test or through a qualifying advanced degree related to the intended employment.

Current rule and introduced proposal

The following comparison concerns this particular exemption. The introduced bills should not be read as instructions to change payroll today.

Why the salary figure can be misunderstood

The exemption test and the H-1B required wage are different rules. DOL’s general wage rule uses the higher of the applicable actual wage and prevailing wage. Meeting an exemption’s dollar figure does not by itself establish that the employee is being paid the required wage.

“Exempt” in this context also does not mean exempt from the H-1B cap, exempt from all employment protections or automatically eligible for a petition approval. The exemption concerns specified additional employer obligations.

What has and has not changed

The current regulation still sets out the existing salary-or-degree test. The introduced bills describe a proposed statutory change. They do not themselves amend that regulation, announce a new effective date or decide whether a particular employee qualifies.

The date on this briefing is the editorial review date. It is separate from the September and October bill-introduction dates above. Any enacted change or implementation instructions would need a further update.