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Learning A Lesson -- H-1B Prevailing Wage Violation

The Department of Labor (DOL) recently penalized the Prince George's County school system for its failure to properly pay H-1B workers.  In the case of an H-1B worker, the employer must pay the employee at least the prevailing wage amount established for the position.  The prevailing wage system is designed to ensure that foreign labor is not used to lower the U.S. wage base in a given occupation.  While the announcement is unclear, the problematic issue for the school is likely to have been the requirement the H-1B worker pay some or all of the fees for the preparation of the H-1B application packages. 

Generally speaking, it can be permissible for the employer to require an employee to pay the legal fees associated with any H-1B filing so long as these costs do not effectively lower the employee's wage rate below the prevailing wage rate.  For purposes of compliance, H-1B employers should view the prevailing wage as the minimum wage for an H-1B employee.  In addition to the prevailing wage floor, employers with H-1B employees should also be mindful of how the H-1B employee's compensation compares to his/her peers in the job classification.  Dropping below one of these floors can create a backpay liability issue for an H-1B employer.  In addition to the attorneys' fees concerns, there is also a government filing fee cost associated with the H-1B program.  While a payment of the attorneys' fees amount can be permissible, employers are not permitted to require the employee to pay the government filing fees associated with the H-1B application process.  

For the Department of Labor press relese click here.


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Don Berner, the Labor Law, OSHA, & Immigration Law Guy
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Boyd Byers, the General Employment Law Guy
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Jason Lacey, the Employee Benefits Guy
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