Total Annual LCA salary vs Monthly Salary

[rommy]

Hi All ,

I need an advice on one of the situation I am facing . My total year to end ( Jan 18 - Dec18) salary is higher than LCA salary , however for current month it is less than LCA annual salary /12 , it has a diff of 3 k diff only for dec 18 salary  , would that cause of an problem ? Am I being considered out of status because of this salary gap ?

 

Thanks

[JoeF]

You always need to get paid the prorated annual salary, i.e., in each month 1/12 of the annual salary. The salary can never go below that.

[rommy]

Thanks JoeF for your response. so it really does nt matter even tough your annual salary higher than annual lca amount ?  Your monthly pro rated monthly salary should not be less than annual lca salary/12 , Is that correct ?

did anyone face similar issue in a past ?

[JoeF]

20 CFR 655.731:

https://www.govinfo.gov/content/pkg/CFR-2012-title20-vol3/xml/CFR-2012-title20-vol3-sec655-731.xml

"(4) For salaried employees, wages will be due in prorated installments (e.g., annual salary divided into 26 bi-weekly pay periods, where employer pays bi-weekly) paid no less often than monthly except that, in the event that the employer intends to use some other form of nondiscretionary payment to supplement the employee's regular/pro-rata pay in order to meet the required wage obligation (e.g., a quarterly production bonus), the employer's documentation of wage payments (including such supplemental payments) must show the employer's commitment to make such payment and the method of determining the amount thereof, and must show unequivocally that the required wage obligation was met for prior pay periods and, upon payment and distribution of such other payments that are pending, will be met for each current or future pay period. An employer that is a school or other educational institution may apply an established salary practice under which the employer pays to H-1B nonimmigrants and U.S. workers in the same occupational classification an annual salary in disbursements over fewer than 12 months, provided that the nonimmigrant agrees to the compressed annual salary payments prior to the commencement of the employment and the application of the salary practice to the nonimmigrant does not otherwise cause him/her to violate any condition of his/her authorization under the INA to remain in the U.S.
    (5) For hourly-wage employees, the required wages will be due for all hours worked and/or for any nonproductive time (as specified in paragraph (c)(7) of this section) at the end of the employee's ordinary pay period (e.g., weekly) but in no event less frequently than monthly.

...

    (7) Wage obligation(s) for H-1B nonimmigrant in nonproductive status—(i) Circumstances where wages must be paid. If the H-1B nonimmigrant is not performing work and is in a nonproductive status due to a decision by the employer (e.g., because of lack of assigned work), lack of a permit or license, or any other reason except as specified in paragraph (c)(7)(ii) of this section, the employer is required to pay the salaried employee the full pro-rata amount due, or to pay the hourly-wage employee for a full-time week (40 hours or such other number of hours as the employer can demonstrate to be full-time employment for hourly employees, or the full amount of the weekly salary for salaried employees) at the required wage for the occupation listed on the LCA. If the employer's LCA carries a designation of “part-time employment,” the employer is required to pay the nonproductive employee for at least the number of hours indicated on the I-129 petition filed by the employer with the DHS and incorporated by reference on the LCA. If the I-129 indicates a range of hours for part-time employment, the employer is required to pay the nonproductive employee for at least the average number of hours normally worked by the H-1B nonimmigrant, provided that such average is within the range indicated; in no event shall the employee be paid for fewer than the minimum number of hours indicated for the range of part-time employment. In all cases the H-1B nonimmigrant must be paid the required wage for all hours performing work within the meaning of the Fair Labor Standards Act, 29 U.S.C. 201 et seq."

 

[rommy]

Thanks JoeF , I did not quite understand rule language but seems like Pro rated salary should not be less than monthly salary , I need to ask them to correct that in my paystub to keep in legal status. 

[JoeF]

Yeah, legal language is always a bit abtruse... That's why lawyers get paid a lot to understand it...

In the language, they use the more common payroll schedule of 2 times a month (which is actually what I have had in every company I worked for.) But it can just be extrapolated to a once a month payroll schedule. If you are paid once a month, the prorated salary has to 1/12 of the yearly salary, and that is what you need to get every month. You can get more, but never less.

Where they mention a bonus in the text, that means a guaranteed bonus, which can be paid less than monthly. And the rule for university employees just reflects the way universities handle salaries, they pay the yearly salary in 9 months and don't pay during summer recess.

[rommy]

Thank you JoeF for putting it into simple terms, really appreciate your help !