H-1B Prevailing Wage: Pay Too Little, Owe It All Back
There is no single H-1B salary, and anyone who quotes you one average number is not telling you how the system works. The wage in an H-1B case is set case by case, for one occupation in one place of employment, and it is set before the petition is filed — in a document called the labor condition application, or LCA, that the employer files with the Department of Labor. Get that number wrong, in either direction, and you have a problem: too low is a violation, and the promises made about it follow the case for years.
The rule itself is one sentence. The employer must pay the H-1B worker the required wage, which is the higher of two numbers: the prevailing wage for the occupation in the area of intended employment, or the employer's own actual wage for the same job. That obligation runs for the entire period of authorized employment, and benefits must be offered to the H-1B worker on the same basis, and under the same criteria, as they are offered to U.S. workers.
The prevailing wage is the wage paid to similarly employed workers in that occupation in that area. Most employers take it from the Department of Labor's own wage data, built from the Bureau of Labor Statistics Occupational Employment and Wage Statistics survey — the OEWS data published in the wage search on the Department's FLAG system. The employer can instead ask the Department's National Prevailing Wage Center for a determination, which carries safe-harbor protection if the wage is later challenged, or use a survey from an independent authoritative source or another legitimate source of wage information. Whichever source is used, the result can never fall below a wage required by any other federal, state, or local law.
The actual wage is the other half of the comparison, and employers miss it. It is the wage the employer pays to everyone else with similar experience and qualifications in the specific job in question, at that place of employment — not a company-wide average, and not the occupation's average. Experience, qualifications, education, job responsibility, and specialized knowledge can explain a difference; a lower rate because the worker is the H-1B worker cannot. If nobody else holds a comparable job, the actual wage is simply the wage paid to the H-1B worker. And if the employer's pay system gives raises, the H-1B worker gets them on the same terms — the required wage is rechecked against the actual wage as pay moves, not frozen on the day the LCA was filed.
DOL publishes the prevailing wage in four levels for every occupation and every area, and the level is part of the wage. Level I is entry level: a basic understanding of the occupation, routine tasks, close supervision — about the 17th percentile of wages for that occupation in that area. Level II is qualified: a good understanding, moderately complex tasks, limited supervision — about the 34th percentile. Level III is experienced: special skills or knowledge, judgment, and work that may include coordinating or supervising others — about the 50th percentile, the middle of the range. Level IV is fully competent: advanced skills, work planned and carried out independently, unusual problems solved without close direction — about the 67th percentile. The level follows the job as it is actually described — its education and experience requirements, its duties, and how much supervision it carries — not the title on the door and not the cheapest number on the chart. Picking Level I for a job that is plainly not entry level is how a filing becomes an underpayment case.
Here is how to look your own wage up, whether you are the employer setting it or the worker checking it. Go to the OFLC Wage Search on the FLAG system at flag.dol.gov. Enter the occupation — the search works by job title and Standard Occupational Classification code — and the area of the actual worksite, the county or metropolitan area where the work will be done. The search returns all four levels, hourly and yearly, for the current wage year; the data is updated once a year, so check that you are reading the series in force when the LCA will be filed. Find the level that honestly matches the job, and that figure is the prevailing wage. Then compare it with the actual wage. The higher of the two is the number that belongs on the LCA, and it is a floor, not a target — nothing stops an employer from paying more.
The LCA itself, on Form ETA-9035, is a set of sworn promises, and the wage is only the first of four. The employer also attests that employing the H-1B worker will not adversely affect the working conditions of similarly employed U.S. workers — hours, shifts, benefits, and the rest; that there is no strike, lockout, or work stoppage in that occupation at that place of employment when the LCA is filed; and that notice of the filing has been given, either to the union representative if there is one, or by posting the notice in two conspicuous places at the worksite for ten days, or by electronic notice to the affected workers. Employers that are H-1B-dependent or have been found to be willful violators take on further attestations about recruiting U.S. workers and not displacing them. The Department of Labor certifies the LCA; it does not approve the job or the worker — that is USCIS's part, on the petition. But a certified LCA is what makes the petition possible, and its wage figure is the one the employer will be held to.
Those promises are not filed away in private. Within one working day of filing the LCA, the employer must have a public access file ready at its principal place of business in the United States or at the place of employment, and any interested person can ask to see it. It holds the LCA itself, the rate of pay for the H-1B worker, a description of the actual wage system, the prevailing wage rate and its source, proof that the notice requirement was met, and a summary of the benefits offered. Keep it for a year beyond the last day anyone is employed under that LCA — or, if nobody was employed under it, a year from the day it expired or was withdrawn — and keep the underlying payroll records for three years. The worker, for their part, is entitled to a copy of the certified LCA no later than the first day of work. Separately, the Department publishes LCA filing data for anyone to search and download, so the wage on an LCA was never a secret in the first place.
When does the wage obligation start? When the worker enters into employment — when they first make themselves available for work or come under the employer's control: waiting for an assignment, reporting for orientation or training, going to a meeting, studying for a licensing examination. If the worker has not yet started, the obligation begins no later than 30 days after the worker is admitted to the United States under the petition, or, if the worker is already here, 60 days after the worker becomes eligible to work for the employer. The wage must be paid in cash, free and clear, when due, in installments no less often than monthly. A part-time worker must be paid at least for the hours stated on the petition. What the employer cannot do is take the required wage back through the side door: no deduction for the employer's business expenses, no charge for the costs of preparing and filing the LCA and the petition, and no penalty collected from the worker for leaving before an agreed date.
The hardest part of this for some employers is benching, so be clear on it: if an H-1B worker is not working because the employer has no work to give — no project, no client placement, a slowdown — or because the worker lacks a permit or license the job needs, the required wage is still owed, in full. Unpaid benching is not a cost-saving measure; it is the violation the Wage and Hour Division finds most often in this program, and it accrues back wages for every unpaid day. The obligation pauses only where the time away is the worker's own: nonproductive time taken at the worker's voluntary request, for reasons unrelated to the job, or a period when the worker is unable to work — and even then, not where a benefit plan or another law, such as family and medical leave law, requires the time to be paid. And the obligation ends only on a bona fide termination: the employment relationship expressly ended, USCIS notified so the petition can be canceled, and the worker offered the reasonable cost of transportation home. Quietly stopping the paychecks, or taking back the badge without notifying USCIS, ends nothing — the wage keeps running.
The wage is also tied to the place on the LCA. If the worker will be placed at another company's site, that site is a place of employment and belongs in the filing. If the worker moves to a worksite in a new area of intended employment, the employer needs a new LCA covering that area — with the prevailing wage for that area, which may be higher — before the work starts there, and an amended petition to go with it. An employer who sends the worker first and papers it later has usually created a back-wage problem at the new location's rate.
One more thing the wage level now decides. For cap-subject cases, selection is no longer a straight lottery: under the wage-level-weighted selection rule, a registration is entered in the selection pool once for a Level I wage, twice for Level II, three times for Level III, and four times for Level IV, using the highest OEWS level the offered wage meets for that occupation and area. A higher wage improves the odds; it does not guarantee selection. It also has to be a real wage — the level claimed at registration has to match the wage on the LCA and in the petition that follows. Inflating a wage on paper to buy extra entries, then paying less, is not a strategy. It is the underpayment violation described above, with a paper trail.
If the required wage is not paid, the Department of Labor's Wage and Hour Division enforces it. A worker, or another aggrieved person, can file a complaint — generally within 12 months of the violation — and the Division can investigate, order back wages for the whole period of underpayment, assess civil money penalties, and, for willful or repeated violations, bar the employer from the H-1B program altogether. No showing of intent is needed for back wages: the LCA said a number, the pay fell short, the difference is owed.
The practical advice is short. Employers: set the wage from the FLAG search and your own payroll before the LCA is filed, choose the level the job honestly fits, build the public access file the same day, and treat the required wage as a fixed cost of the case — including on the bench. Employees: ask for your LCA, look up the four levels for your occupation and worksite yourself, and compare them with your pay stub. If the numbers do not match, that is not a misunderstanding to sit on. It is a debt with a deadline.
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General information, not legal advice. Requirements and processing change; we confirm current rules for your case.