Jump to content
All posts are moderated, so it will take time for your post to appear!
Search In
  • More options...
Find results that contain...
Find results in...
ssv22

Current salary less than salary stated in H1B petition

Recommended Posts

Hello,

I am currently working on F1-OPT visa as a test engineer and getting a salary of USD49000 which is well below the market average. My employer has recently filed H1B on my behalf and the salary stated in the H1b petition is USD83000 although i am still drawing the old salary. I also have a new offer letter from my employer which will be in effect from January and the base salary is 73000 and with bonus, it can go up to 80500USD which is still less than what is being stated in H1b petition. I am planning to go for visa stamping in December if my H1B gets approved. Is there going to be a problem since I will have to carry my payslips? Please advise.

Share this post


Link to post

From the H1 start date on, you have to get paid the salary listed on the LCA. No but or if.

If the employer doesn't want to pay the required salary, you can forget getting the H1 visa stamp.

When the employer signed the LCA, they agreed to pay the listed salary as soon as the H1 gets approved. File a complaint with DOL on form WH4 if the employer refuses to pay the salary as listed on the LCA. The DOL will make the employer pay the salary.

Share this post


Link to post

Thank you for your reply JoeF! Truly appreciate it! However, I am a bit confused. Does the employer have to pay me the salary stated on the LCA from the H1B start date or when the H1B gets approved, because there's a chance they might be two different dates. Isn't it true that I need to be paid the LCA equivalent at the time of filing?

Thanks again.

Share this post


Link to post

You have to get paid the salary as soon as you are in H1 status.

If the approval notice has an I-94 at the bottom, that will show the start date.

If the H1 was filed without COS, you would have to get an H1 visa abroad, and you would then be on H1 when you enter with that visa.

While you are on OPT, there is no requirement to pay the H1 salary.

Share this post


Link to post

Thanks Joe! I have another question. can target bonus be counted as salary? I mean, by wages on the LCA, does it mean base salary or compensation which includes target bonus?

Share this post


Link to post

Thank you Joe! The HR informed that the figure on the LCA is the compensation which includes base salary + bonus etc.

also, I got H1b approved few days ago and the H1b start date is Nov 10 but i am still getting the old salary which is less than minimum wage requirement. I am in a bit of daze here since I am not getting the answers that i need and its not that i work for some shady consultant. this is a big reputable company that we are talking about.

Share this post


Link to post

The bonus does not count. The LCA specifies the base salary. If it is a yearly salary, you have to get paid the pro-rated amount in every pay period. You can't get paid less and then possibly a bonus once a year.

As an example, let's say the salary per LCA is $60K/year. That means you need to get paid $5K per month. If your base salary is $50K+possible $10K bonus, you would get paid $4166 per month, less than the LCA. That you may get an additional $10K at the end of the year is irrelevant, because you have to get paid the salary pro-rated over the year.

You always have to get paid the salary. What if they decide to not pay a bonus all of a sudden? A bonus that's not even guaranteed doesn't count for the salary.

The "big reputable" company should consult with a good immigration lawyer.

Share this post


Link to post

A note, all this applies to your gross salary (before taxes). However, some consultants deduct a so called 'employer tax', that is not included in here. So,

'take-home salary + Employee tax' should be greater than the LCA amount.

Regarding bonuses, they may be counted in the gross salary only if they are guaranteed bonuses. So effectively at the end of the year, total gross income must be greater than LCA. This provision is there to protect other employees in similar position. So if you are earning $60k + $10k not guaranteed bonus, other employee is earning 60k + 5k and minimum wage as per LCA is 67K, you are still considered making less than minimum wage.

Share this post


Link to post

A note, all this applies to your gross salary (before taxes). However, some consultants deduct a so called 'employer tax', that is not included in here.

This "employer tax" is not a real tax, but rather something that some consultants deduct for themselves.

Regarding bonuses, they may be counted in the gross salary only if they are guaranteed bonuses.

Yes.

In this case, the bonus does not seem to be guaranteed. The OP said "with bonus, it can go up to ..." That indicates to me that the bonus is not guaranteed, and therefore can not be used to satisfy the LCA requirements.

Share this post


Link to post

What is this "employer tax"? Did you mean payroll tax?

It is something shady consultants invented.

It is not a tax. These shady consultants just call it a "tax" so that their employees think it is something official.

Share this post


Link to post

Got H1B approved on Nov 10...but still not getting paid as per LCA, in fact more than 50% less than the salary on LCA, whereas now they ve promptly started to deduct social security and other taxes. when confronted, they say they are looking into it !!

Share this post


Link to post

Point them to 20 CFR 655.731. That's the law that states the salary requirements. It is also referenced on the LCA.

Also, if they refuse to pay the salary as promised on the LCA, you may want to look into filing a complaint with DOL on form WH4. The DOL would get the employer to pay the required salary.

Share this post


Link to post

Yea. complain to DOL. Long long time ago, when I had just graduated, I was lured into this shady consulting business. It took me a few months to figure out the shady dealings of the company. As soon as I found out, I found a new job, transferred my H1B and filed a DOL complaint against my old employer. To my surprise, DOL sued my employer and collected back wages and sent me a check.

So, I suggest you do the same.

Share this post


Link to post

Hi joeF,

               Could you please suggest me on the scenario..

 

 

I had to go to stamping next week and we realised that my current salary is less than salary that was disclosed in LCA which is purely an overlook error while setting up the payroll.

 

    My current pay that my employer is paying is 72K per annum for 2013 ( 6 pay checks of 6000 dollars each).

 

LCA is filed for my work location on January 2013 with salary of 89K per annum. Prevailing wage is 80k.

 

So my employer ran couple of pay roll adjustments for  6 months from january to june ( one for 4800 and other for 4000) so that I would make up to the 89k mark.

 

Now I have 6  pay stubs with 6 months and 2 pay roll adjustment pay stubs ( which shows the pay period from 01/01/2013 to 06/31/2013).

 

Will this be a problem at the interview . I have an interview scheduled in canada next week.

 

Any help will be highly appreciated. Also if you could suggest an attorney to get any detail suggestion on this is also helpful.

 

 

cheers

Share this post


Link to post

Can we get Paid more that the Amount mentioned on LCA my LCA states my salary is 75K and My company pays me 90K per annum is this ok to go for stamping?

That's not a problem.

Share this post


Link to post

Can we get Paid more that the Amount mentioned on LCA my LCA states my salary is 75K and My company pays me 90K per annum is this ok to go for stamping?

Yes

Share this post


Link to post

Can we get Paid more that the Amount mentioned on LCA my LCA states my salary is 75K and My company pays me 90K per annum is this ok to go for stamping?

Of course you can. Getting more money is not a problem, getting less money than the LCA is a problem.

Share this post


Link to post

Hey everyone,

This post was very clear and helpful for my situation. My H1B Visa has been approved, but I'm currently getting paid ($36,000/year) below the prevailing wage ($75,000) as per LCA. So my company needs to make sure that I get paid the prevailing wage ($75,000/year) in a 12 month period.

 

My Application was filed in April 2017. I received my H1B approval notice on January 2018. My I-797A Notice of Action states that my H1B is valid from October 2017. So when does the 12 month period start?

 

I know I'm very late to this thread, but I would greatly appreciate some insights on my situation.

 

Thanks in Advance

 

 

Share this post


Link to post
3 hours ago, JJoe said:

Hey everyone,

This post was very clear and helpful for my situation. My H1B Visa has been approved, but I'm currently getting paid ($36,000/year) below the prevailing wage ($75,000) as per LCA. So my company needs to make sure that I get paid the prevailing wage ($75,000/year) in a 12 month period.

 

My Application was filed in April 2017. I received my H1B approval notice on January 2018. My I-797A Notice of Action states that my H1B is valid from October 2017. So when does the 12 month period start?

 

I know I'm very late to this thread, but I would greatly appreciate some insights on my situation.

 

Thanks in Advance

 

 

That's actually a good question.

My understanding is that you are on H1 from the approval date.

So, if the LCA says that your salary is 75K per year, you have to get paid appropriately right now. The law says that you have to get paid at least monthly. Most people get paid twice a month.

So, if you get paid monthly, each paycheck since the H1 approval date needs to be $75K/12, if you get paid twice a month, it has to be $75K/24.

Edited by JoeF

Share this post


Link to post

 

On 2/17/2018 at 8:23 PM, JoeF said:

So, if the LCA says that your salary is 75K per year, you have to get paid appropriately right now. The law says that you have to get paid at least monthly. Most people get paid twice a month.

 
 

Thank JoeF for very good answer. Could you please provide us what the law mentioned about this one?

Edited by donga

Share this post


Link to post
17 hours ago, donga said:

 

Thank JoeF for very good answer. Could you please provide us what the law mentioned about this one?

20 CFR 655.731:

"(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."

Share this post


Link to post

Create an account or sign in to comment

You need to be a member in order to leave a comment

Create an account

Sign up for a new account in our community. It's easy!

Register a new account

Sign in

Already have an account? Sign in here.

Sign In Now
×