Continuing Obligation to Pay Offered Wages to H-1B Workers

This is a reminder to all employers of H-1B foreign nationals.
The filing and approval of an H-1B Petition requires the employer to pay the H-1B worker no less than the wages offered in the H-1B Petition filed with USCIS. This requirement exists even for nonproductive time (i.e. time during which employee is not working) caused by conditions related to employment, such as lack of assigned work. However, no payment is required under the H-1B program for nonproductive time due to reasons not related to employment, such as a worker’s voluntary absence from work.
Any reductions in salary contemplated in light of the current economic situation which would lower the H-1B worker’s salary below the offered amount would constitute a violation of the employer’s obligations agreed to at the time of filing.
If the employer wishes to proceed with a salary reduction, they must file an amended Labor Condition Application and H-1B Petition, and must continue to offer wages which equal or exceed the “Prevailing Wage” for the occupation. Doing so will incur additional fees and costs including legal fees and government filing fees.
If the H-1B worker is now earning more than the wages offered in the H-1B Petition, the employer can reduce the wages to an amount no less than the amount offered in the Petition without filing an amendment.
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