The argument that H-1B workers are less expensive than American Workers has repeatedly been put forth by anti-immigration organizations and journalists.  I was never clear on this logic, and in any event it is a myth when the H-1B program is used as it is supposed to be.

In order to file an H-1B petition with the USCIS, an employer must include a certified Labor Condition Application (LCA) from the US Department of Labor (DOL).  When signing the LCA, the employer attests that the H-1B non-immigrant will be paid the higher of either the prevailing wage for the occupation in the particular geographic area or the actual wage, which is the wage paid to others who work for the petitioner in the same position at the location where the H-1B worker will be employed.

The prevailing wage is determined in one of several ways that are acceptable to the DOL.  The greatest protection for an employer is to obtain a Prevailing Wage Determination (PWD) from the State Workforce Agency in the state where the non-immigrant will be employed.  The job description on the Prevailing Wage Request should be accurate and complete to ensure the validity of the PWD in case of a DOL audit.

The DOL rules relating to the payment of wages of H-1B non-immigrants are strict.  Therefore, absent fraud, H-1B non-immigrants are far from “cheap”.  In addition to the requirement that the employers pay the required wages, they are also obligated to pay all USCIS filing fees which can total as much as $2320.00.  Legal fees for filing the H-1B petition can also be substantial.

Author: Bradley Maged

I'm Brad Maged, an immigration lawyer in Boston, Massachusetts. I help people who want to live and work in the United States and companies that wish to employ them. This blog provides opinion and information on developments in immigration law. Thanks for reading!

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