H-1Bs: Is there a minimum wage I need to pay my employees?

Under the H-1B statutes and regulations there are two concepts related to the wages that are required to be paid:  The “prevailing wage” and the “actual wage”.  The “prevailing wage” is general determined by the Department of Labor (DOL) through a prevailing wage request submitted online which details the job duties, educational and experience requirements, travel requirements, etc.  the DOL then fits the position in a job classification in its online wage database and determines the wage level.  The wage levels are from 1 (entry level) to 4 (fully independent) and the level selected depends upon the required education, experience, etc. and how that compares to what the DOL would consider “normal” for that position.

The “actual wage” is calculated by the employer.  For this calculation, the employer looks at the range of salaries being paid all other similarly employed individuals with similar experience and qualifications.   To be safe, the employer should show that the employee is being paid the higher of that salary range.  However, remember, only employees with “similar experience and qualifications” are included in this range – this includes time worked for the company, experience, education, skills, etc.  If there are no other similar employees the actual wage would be the wage paid to the H-1B employee.  It should be noted that, as part of the H-1B process ALL employers need to make a written actual wage determination and keep it in the employee file. They also need to put the wage range for the actual wage in the public file.

To bring all the above together – the employer must pay the H-1B employee the higher of the prevailing wage or the actual wage.  As you can tell from the above, with immigration even the simplest questions can have complicated answers.

Author: Adam Frank, Esquire

I am an immigration attorney with over 20 years of experience. I was graduated from Brandeis University undergrad in 1990 and then spent a year traveling around Central America. In 1991 I began attending the University of Baltimore School of Law and was graduated in 1994. I began working in Immigration Law in 1998 when I joined a small law firm and, in 2000 opened my own firm with my law partner Ed Leavy. Sadly, Ed passed away in 2011. I am still a partner in my own firm with my current partner Brendan Delaney. Our firm is Frank & Delaney Immigration Law, LLC.

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