Per diem on H1 Visa

[amittal6]

Hi,

I am supposed to travel in a month to the US (Illinois) through my employer (an IT company) for 6-8 months. The company is giving me accommodation and car (stay and travel). But it will not pay me any US salary except per diems of $40 USD every day. At the same time, my employer is also giving me Indian salary in India.

Therefore in light of this, I have following queries:

a) Whether it is legally allowed or possible to work on H1 Visa in US without salary and only through per diem which is mainly for food and other expenses ($40).

b) If not, then how can I inform employer that this is wrong doing or policy gap? Is there any link or place where I can point the immigration team of my organization to check out from there. Currently immigration team is saying that there is no violation of rules even if a person travels on H1 for US but given per diem.

c) Will per diems arrangement pose me any threat in terms of job change (H1 transfer to new employer) or any other legal action that might arise in near future?

I am not sure whether payslips will be provided to me by employer in US or not sure what they will write as description - per diem expenses, etc. if provided

Please help me out.

Thanks,

Ankur

[JoeF]

On H1, you need to get paid the prevailing wage for the job in the region where the job is located.

This has to be in US dollars on the US payroll. Per diem is not a replacement for that.

The employer actually knows it. All that is written as part of the LCA. When the employer filed the LCA, the employer signed that they would comply with the US laws on H1s.

20 CFR 655.731.

[MayEB2I]

This is definitely fishy.

Did you check with other coworkers who were sent to US on per diem basis?

I used to work with an Indian MNC and travelled to US on their H1.

I got US salary as well as some components of Indian salary. No per diem.

Per diem was given to people who come here on B1.

[amittal6]

Hi JoeF and Krish,

Thanks for your prompt responses.

Yes this is fishy and at the same time 'Policy Gap' on employer side.

I guess the arrangement in my organization is to give accommodation (in decent hotel) and travel (rent-a-car) free along with $40 as per diem for food. On top of it, India Salary is also being paid. So might be the case that the employer can prove that the accomodation and travel expenses will be more than what is prescribed in LCA.

Is this per US law and immigration provisions?

Coworkers are either unaware of this or they just have to be forced to go on per diem beacuse 'policy for payroll transfer is not there'.

[Attorney_6]

H1B employees must be paid the higher of the prevailing or actual wage---which is what should be stated on the LCA. The U.S. employer has to be in control of the employee, but the wage could potentially be paid from abroad where there is a multinational company. But, whatever the currency, the payment must equal the proper US wage.

The payment for or reimbursement for travel expenses is separate from wages.

This particular arrangement might be reasonable for a temporary business trip by a worker who lives abroad coming in to the U.S. in a different category. But, it doesn't work for H1s.

The employer needs to rethink and revise this policy before they end up having a multitude of problems.

[MayEB2I]

Sue them and get RICH :-P

(j/k....and NOOOO...dont do that...u lll lose your job + H1)

[livliv]

Sue them and get RICH :-P

(j/k....and NOOOO...dont do that...u lll lose your job + H1)

Then sue them for retaliatory termination. (don't do that either, therre extremely less likelihood of winning that case).

[MayEB2I]

c) Will per diems arrangement pose me any threat in terms of job change (H1 transfer to new employer) or any other legal action that might arise in near future?

Ankur,

Are you actually considering a job change after you come to US?

If so, yes, payslips are required for H1 transfer.

Regardless of how much ur current company pays, I am sure they will still be providing payslips.

You could use those payslips for your H1 transfer application.

I dont think you will get an RFE based on the lower wage on the payslips.

Frankly, its difficult to establish that you are actually getting paid lower in your case.

lets say, you arrive US and apply for H1 transfer after 4 months stay. By then you will have 4 payslips(if it is monthly payments).

Lets say, the pay per LCA is $60,000 per annum.

The company can still argue that they paid you only partly but they were planning to pay higher amounts for the remaining 8 months. There is no rule that says the company has to be pay $5K per month.

Unless you have payslips for the entire Financial calendar year, u cant establish that the company paid you less than $60K for that year.

Your company is smart in the sense that they are sending you for only 6-8 months (and not for a full year).

Bad news is that it is difficult to prove lower payments

Good news is you wont have problems during H1 transfer.

I have 1 question for you: do you know of any other employees in your company who were sent for more than 1 year (without break)? If so, it extremely important for you to find out how they were getting paid, if they did get payslips and whats the split of allowances.

In case you find the answers to the above question, post them here and I can probably help you with further analysis.

[JoeF]

c) Will per diems arrangement pose me any threat in terms of job change (H1 transfer to new employer) or any other legal action that might arise in near future?

lets say, you arrive US and apply for H1 transfer after 4 months stay. By then you will have 4 payslips(if it is monthly payments).

Lets say, the pay per LCA is $60,000 per annum.

The company can still argue that they paid you only partly but they were planning to pay higher amounts for the remaining 8 months. There is no rule that says the company has to be pay $5K per month.

WRONG!

The law says that a person on H1 has to get paid regularly, no less than monthly. If it is a salary, the pay has to be pro-rated. If it is hourly pay, the person has to get paid for fulltime hours.

That's all listed in 20 CFR 655.731.

Please do not post wrong and potentially dangerous information. Thank you.