In a case that may be of interest to Maryland employers and employees alike, a Department of Labor administrative law judge has ruled that employers cannot use financial hardship to avoid paying employees with H-1B nonimmigrant visa status the wage specified to the federal government. The judge said foreign nationals must be paid the wage indicated on the Labor Condition Application certified by the DOL.
Regulations state that an H-1B employer is required to pay an employee the greater of the actual or the prevailing wage specified on the LCA. If the actual wage is equal to the prevailing wage, the employee must receive that wage during the entire term of approved employment, including periods when there is lack of available work. The employer is only relieved of this obligation if the employee requests to reduce or terminate employment or if the employer terminates the employee for a bona fide reason.
The case before the judge involved the owner of two Florida gas stations who paid three H-1B employees almost $230,000 less in wages than was certified on their LCAs by making them part-time workers. The owner claimed the 2008 national recession made it impossible to pay the workers the original amount promised. However, the judge ruled that a "flagging economy" was not a legally sufficient defense for failing to meet the wage certified on the LCAs. The owner was ordered to pay $230,000 in back wages to the H-1B employees.
Companies who are seeking H-1B visa workers may benefit by consulting with an immigration attorney. An attorney could help prepare the necessary documents and provide essential guidance throughout the application process.
Source: National Law Review, "DOL Judge Says Flagging Economy Insufficient Basis to Relieve H-1B Employers of Wage Obligations," Forrest Read, July 21, 2016