H-1b Employers Must Pay Prevailing Wage Or Higher

By Author: Morley J. Nair
Total Articles: 9
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It is a legal requirement that employers pay their H-1B employees wages equal to or higher than the prevailing wage. This prevailing wage is the wage determined by the State Workforce Agency for a specific geographical location of employment. The easiest way to get this is from the online wage library website of the Department of Labor Foreign Labor Certifications unit. Another method is to ask the State Workforce Agency for the prevailing wage by giving the job title, job duties, education/experience requirements, etc. Each state has its own format and procedure for such prevailing wage requests. The third option is to use wage surveys published in the preceding two years. The employer can also use a union contract negotiated by a bargaining representative. Yet another option is for the employer to have a custom wage survey commissioned. The last option is obviously the most time-consuming.

The offered wages or salary should be equal to or higher than the prevailing wage determined above. The employer should keep in their files documentary evidence supporting the wages offered. The Department of Labor regulations ...
... require that the employer maintain documentation specifying the basis used to establish the actual wage, and also how the wages for the H-1B worker compares to the wages paid to other individuals with similar experience and qualifications for the specific employment at the place of employment. The employer must apply the same methodology to determine the wage offered to all U.S. and H1B employees in this classification when determining the actual wage.

This is easier if there is an official wage scale either as an official policy of the employer, or as part of a collective bargaining agreement. The factors that usually determine wage levels are job duties and job requirements (educational qualifications/ experience and specialized knowledge). Though this information need not be submitted as part of the H1B Petition requirements, the Department of Labor can ask for this at any time.

The H-1B employee should be paid the salary specified in the H-1B petition, no matter whether the employee is actually performing the job duties specified in the petition or not. In the H1B-related parlance when an employee is out of work for want of a project, he/she is said to be on the bench. There is no such thing as bench time without pay. That is, even if the Employer does not have a project for the employee to work on, he/she has to be paid. A person need not be paid if he/she is on unpaid vacation. But there should be documentary evidence of such unpaid vacation. Similarly, H-1B wages need to be paid when the employee is physically not present in the U.S.

An H-1B employee can report wage violations to the United States Citizenship and Immigration Services (USCIS) or to the Department of Labor. Evidence of such reporting will be given weight in the absence of latest pay stubs that are needed when an employee attempts to transfer to another employer or files for any change of visa status.

The employer can fire the employee any time. But all contractual obligations should be complied with.

Disclaimer: The information in the above article is of a general nature only and should not be taken as legal advice. Always seek professional legal advice before proceeding with your case.

Copyright: The Law Offices of Morley J. Nair, Inc.
Morley J. Nair is the founder of The Law Offices of Morley J. Nair, located in Philadelphia, PA, practicing Immigration Law in all the 50 states. The firm has processed thousands of H-1Bs and hundreds of employment-based immigrant visas. The firm websites are http://www.visaworks.com and http://www.h1bplanet.com.