The H-1B employer must pay its H-1B worker(s) at least the "required" wage which is the higher of the prevailing wage or the employer's actual wage (in-house wage) for similarly employed workers.

What is the prevailing wage?

The prevailing wage is the wage rate set for the occupational classification in the geographical area of employment by:

1. A union contract which contains a wage rate applicable to the occupation; or

2. For an occupation not covered by a union contract, the weighted average of wages paid to similarly employed workers (i.e., workers having substantially comparable jobs in the occupational classification) in the geographic area of employment.

What is the employer's actual wage?

The actual wage is the wage rate paid by the employer to all individuals with experience and qualifications similar to the H-1B nonimmigrant's experience and qualifications for the specific employment in question at the place of employment. The actual wage established by the employer is not an average of the wage rates paid to all workers employed in the occupation. If there are no similarly employed workers, the actual wage is the wage paid to the H-1B worker.

Can the H-1B worker's wage be either hourly or salaried?
Yes.

Is there a guaranteed minimum number of hours that must be paid?

Yes. The guaranteed minimum number of hours to be paid for all periods to the H-1B worker is the number of hours that the employer reports on the Petition for Nonimmigrant Worker (Form I-129/I-129W), item 5. The guaranteed pay begins when the worker enters into employment, but in no case later than 30 days after the H-1B worker enters the U.S. to take the job or, where the worker is already in the U.S., 60 days after the H-1B worker is authorized to work for the employer.

Must the employer pay the guaranteed minimum hours if no work is provided?

Yes. The employer must pay the guaranteed minimum hours unless the H-1B worker is unavailable for work because of non-work related factors, such as the worker's own voluntary request for time off, or in other circumstances where the worker is unable to work.

Are H-1B workers covered by any other Federal wage requirements?

Yes. Other Federal wage statutes apply to H-1B workers in the same manner as any U.S. worker.

All requirements listed above can be found in 20 CFR § 655 Subparts H & I and the Immigration and Nationality Act § 212(n).

What are the rules concerning deductions from an H-1B worker's pay?

An H-1B worker, whether through payroll deduction or otherwise, can never be required to pay the following:

• A penalty (as defined by state law) for the worker's failure to complete the full employment period;

• Any part of the $750/$1500 statutory Department of Homeland Security's U.S. Citizenship and Immigration Services (formerly the Immigration and Naturalization Service) petition filing fee; and/or

• Any deduction for the employer's business expenses that would reduce an H-1B worker's pay below the required wage rate, including:

o Any expenses, including attorneys' fees, directly related to the filing of the Labor Condition Application (Form ETA 9035 and/or ETA 9035E);
o Any expenses, including attorneys' fees and the $500 fraud protection and detection fee, directly related to the filing of the H-1B petition (Form I-129/129W);

o Tools and equipment; and

o Travel expenses while on employer's business.

Deductions, other than those excluded above, may be made, even if they reduce the H-1B worker's pay below the required wage rate, only when the deductions satisfy one of these three categories:

• Require by law (e.g., income taxes); or

• Reasonable and customary (e.g., union dues, insurance premiums); or

• Voluntarily authorized by the H-1B worker, under the following standards:

o There is a voluntary, written authorization by the employee;

o For a matter principally for the benefit of the employee, such as reimbursement for travel to the United States or payment for food and lodging not incurred while traveling on the employer's business;
o For an amount that does not exceed the fair market value or the actual cost (whichever is lower) of the matter covered; and
o The amount does not exceed the limits for garnishments set by the Consumer Credit Protection Act.

All requirements listed above can be found in 20 CFR § 655 Subparts H & I and the Immigration and Nationality Act § 212(n).