It seems like a simple question - how much money do you need to pay an employee under an H-1B visa? The official answer is that simple. You must pay them at least the actual or prevailing wage for your occupation, whichever is higher, according to the United States Citizenship and Immigration Services (USCIS). That's the kind of statement that leads to more questions than answers. What is a prevailing wage? How does it differ from an actual wage?
Fortunately, there are some helpful resources to assist you in determining whether the non-US citizen meets the minimum requirements for H-1B status. Let's start out by defining what a prevailing wage is versus an actual wage.
What is a Prevailing Wage?
A prevailing wage is the hourly wage, benefits and overtime, for workers within a particular area. The U.S. Department of Labor maintains a database where you can search for the occupation and geographic location in order to determine the prevailing wage for the position. The wage library segmented by state can be found here. You can also request a formal wage determination from the U.S. Department of Labor online by submitting a description of the position. Defining the actual wage for the job, however, is far trickier.
What is the Actual Wage?
The actual wage for the position is the wage that you as the employer pays other employees with similar experiences and qualifications. This can be difficult to establish, since there may be no other employees doing the same job you are looking to hire for to serve as the basis for the actual wage, or there may be a large number of other employees doing the job or similar jobs, all with varying levels of experience and qualifications. One thing you can do is to scan job boards (Monster, Indeed, LinkedIn) to get an idea of the salary range for a given job. In fact, LinkedIn usually gets a minimum to maximum salary range for most of the jobs listed on its platform.
Which wage level am I required to pay?
Now that you have a basic understanding of what prevailing wages and actual wages are, how do you determine if it meets the minimum wage requirements for H-1B status? The USCIS requires that the employee be paid the higher either the actual or prevailing wage. What this means is that if the actual wage is lower than the prevailing wage, the employer must pay the difference in order for to meet the wage requirements. So in reality, the answer to the initial question is that the employee must make at least the prevailing wage for the position to obtain H-1B status.
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Should you have any questions about how this impacts your business or employees, please do not hesitate to reach out to us
Content in this publication is not intended as legal advice, nor should it be relied on as such. For additional information on the issues discussed, consult a Bridge-affiliated partner attorney or another qualified legal professional.
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