20 C.F.R. § 655.731(a)
(a) Establishing the wage requirement. The first LCA requirement shall be satisfied when the employer signs Form ETA 9035 or 9035E attesting that, for the entire period of authorized employment, the required wage rate will be paid to the H-1B nonimmigrant(s); that is, that the wage shall be the greater of the actual wage rate or the prevailing wage . The wage requirement includes the employer's obligation to offer benefits and eligibility for benefits provided as compensation for services to H-1B nonimmigrants on the same basis, and in accordance with the same criteria, as the employer offers to U.S. workers.
20 C.F.R. § 655.731(a)(1)
(1) The actual wage is the wage rate paid by the employer to all other individuals with similar experience and qualifications for the specific employment in question. In determining such wage level, the following factors may be considered: Experience, qualifications, education, job responsibility and function, specialized knowledge, and other legitimate business factors…Where there are other employees with substantially similar experience and qualifications in the specific employment in question--i.e., they have substantially the same duties and responsibilities as the H-1B nonimmigrant--the actual wage shall be the amount paid to these other employees. Where no such other employees exist at the place of employment, the actual wage shall be the wage paid to the H-1B nonimmigrant by the employer.
The Actual Wage
The employer must agree to pay an H-1B nonimmigrant the required wage rate, which is defined as the higher of the actual and prevailing wage rate. The prevailing wage is the rate being paid in the greater Philadelphia area for the same occupation. If employment will take place at more than one site, we must determine the prevailing wage for both locations. To document the actual wage, the Department must list all other persons currently employed in the department with the same job classification as the potential H-1B employee. If the salaries do not match, the department must provide the reasons for the discrepancies. (Please be specific.)
If the prospective H-1B employee’s salary is not equal to nor higher than the salaries of the comparable employees (if the department cannot justify why another employee earns more than the H-1B), ISSS will be unable to submit an H-1B petition for this employee and he/she may not be employed by TU. The department must use the same criteria for comparison for each Actual Wage Calculation of every H-1B to be hired.
The U.S. Department of Labor has ruled that only certain criteria may be used to eliminate other employees from comparison.
Valid criteria for stating employee is not comparable:
- Employee has more relevant work experience than H-1B employee
- Employee has specialized knowledge relevant to the field
- Employee has more responsibility than H-1B employee
- Employee has better educational credentials than H-1B employee (more prestigious school)
- Employee does not work same number of hours or performs more duties
- Salary compression/inversion (person recently hired earns more than someone who’s worked at Temple longer) or TU salary freeze (past or present) resulted in different pay
- Funded by different grant (salary limitations of a particular grant do not count)
- Department had more money when it hired another employee Different area of researchAnother employee demanded a higher salary or H-1B is willing to work for less moneyH-1B would be paid less if s/he was in home country
- Another employee is paid more due to abilities or qualifications irrelevant to the position
If you have any immigration questions, please contact International Student and Scholar Services at
215-204-3805 or firstname.lastname@example.org.