With the current downturn in the economy, many employers are pressured to reduce the salary paid to their employees. Reducing the pay of their H-1B employees is tricky due to the obligations of an employer under the H-1B regulations. The regs require the employer to pay the “required wage,” which is the higher of the actual wage or the prevailing wage.  The actual wage was recorded on the LCA when filed, and if it was higher than the PW at the time of filing, presumably that is the wage floor for the duration of approved status. If all similarly situated employees experienced the same pay decrease, the actual wage is arguably reduced. But the employer takes a risk of incurring back wage liability if it reduces the H-1B worker’s wages below the rate on the LCA and I-129, without first filing a new LCA, and amended petition. Per the Simeio policy guidance if an amended LCA is required, then an amended petition is required.

The following Q &A is from a July 24, 2003 USCIS service center teleconference with American Immigration Lawyers Association.

  1. Where an H-1B is earning more than the prevailing wage but, due to across-the-board salary cuts, is earning less than the salary listed on Form I-129, and the reduction complies with DOL LCA regulations, we believe that this would not be considered a material change and that no notice would be required to BCIS in connection with the approved H-1B petition. Please confirm.

The BCIS has consulted with the U.S. Department of Labor. The DOL is sensitive to the fact that wages can and sometimes do go up and down based on economic conditions. In the circumstance described in your question, there would be no need for a new LCA or a new I-129 petition provided that the employer was still paying the “required wage” [meaning the higher of the applicable prevailing wage or actual wage]. Any change in the beneficiary’s wage rate must be disclosed in the next H-1B petition filing with the BCIS. It is important that any wage change be documented in the employer’s LCA public disclosure file and disclosed to the BCIS in the next H-1B filing.

So can one rely on the above Q&A by documenting the wage change in the LCA public disclosure file, and not filing a new LCA and amendment? The above Q&A does not have the force of law as its not a statute or regulation. It does not even have the force of a sub-regulatory instrument like an official policy guidance memorandum. Additionally, DOL would not be bound by the USCIS’s “informal” interpretation of the DOL LCA regulations. Considering the policy stance of the Trump Administration on immigration matters it would not be advisable to rely on the above Q&A. The safest course of action would be to file an amendment or a change in previously approved employment petition to notify USCIS and DOL of the change in the actual wage.