H-1B Prevailing and Actual Wage Requirements
Wage Requirements for H-1B Employees
Under US Department of Labor regulations, Tufts University is required to meet stringent wage requirements for any worker hired under the H-1B specialty occupation program (as well as the E-3 program for citizens of Australia). Specifically, the University must pay the H-1B employee the higher of the prevailing or actual wage, as defined below. For example, if a position has a prevailing wage of $90,000 and an actual wage of $80,000 the H-1B employee must be offered $90,000 in order to meet H-1B hiring requirements; otherwise, sponsorship may not proceed. These wage requirements were designed to ensure that the interests of both US and H-1B workers are protected with respect to wages and related working conditions.
> Click here for a Workshop for Tufts Departments on H-1B Wage Requirements (narrated Powerpoint), updated December 2023.
The prevailing wage for a position sponsored under the H-1B is one of the following:
- For unionized positions, the wage set by a collective bargaining agreement (CBA), if the CBA includes a wage rate applicable to the position
- For non-unionized positions, the weighted average of wages paid to similarly employed workers carrying out substantially similar jobs in the geographic area.
Who calculates the Prevailing Wage? The International Center determines the prevailing wage based on a job description provided by the hiring unit requesting an H-1B worker. Utilizing this information, the International Center refers to either an applicable CBA (less common), or Department of Labor wage statistics for the geographic area where the employee will be situated when carrying out job duties.
What information is needed to determine the Prevailing Wage? In order to determine the prevailing wage, the International Center will ask the hiring unit to provide a complete job description that includes the following:
- principal job duties, including disciplinary area (computer science, molecular biology, history, etc.)
- minimum educational and experiential requirements
- supervisory responsibilities, if any
- any other exceptional knowledge or skills beyond normal hiring and qualifications requirements
- job location(s), i.e., where the employee will be situated when carrying out job duties (including remote or alternative worksites / locations)
All of the above factors can affect how the prevailing wage is calculated.
Does the Prevailing Wage ever change? The Department of Labor updates its prevailing wage schedules annually, so it is not uncommon for prevailing wage requirements to change on a year-to-year basis. A department seeking to extend an employee already under the H-1B program may be presented with a higher prevailing wage due to these factors.
The "actual wage" for an H-1B worker is the wage (or wage range) for similarly qualified employees (including US workers) situated in the same position at the same place of employment. The actual wage is not the salary offered the H-1B employee, unless the H-1B employee is the ONLY person occupying the H-1B position in the place of employment (i.e., there are no other similarly employed individuals doing substantially the same work). If more than one employee will be occupying the same position within the place of employment, then the actual wage should be the wage or wage range that covers all similarly situated employees.
What is the appropriate reference for determining the place of employment? The Department of Labor's regulations are designed to promote equivalent compensation for workers doing essentially the same work within the same place of employment. Examples of appropriate reference groups for actual wage determination include the following:
- the wages or range of wages paid to postdoctoral scholars in the same laboratory or under the same PI
- the wages or range of wages paid to assistant professors in the same department or program
- the wages or range of wages paid to technical specialists working for the same office doing similar work
As the above examples indicate, when determining the actual wage, it is best to consider the wages of persons who are doing substantially the same work within the same unit responsible for hiring and controlling the work of employees within that unit. This could be a PI's laboratory, a department, a school, an office, or other similar unit of authority that is responsible for overseeing the work and compensating individuals within that unit.
What if the H-1B is not paid the same as other workers doing similar work? IH-1B workers must be paid the higher of the prevailing wage (see previous section) or the actual wage for the position. With respect to the actual wage, the employee should be paid equivalently to others in the same place of employment who are doing the same or similar work. In certain cases, however, wage differences may be legitimate. See the next tab for more information.
The H-1B program is designed to safeguard the interests of both US workers and H-1B workers by requiring all similarly situated employees to be paid equivalently, unless there are legitimate reasons for wage or salary differentials. Legitimate criteria under US Department of Labor guidelines are limited to differences in:
- Experience, including depth and breadth of experience
- Education, including degree level / type and quality of the degree-granting institution
- Job function and responsibilities, including any special duties or added supervisory responsibilities
- Specialized knowledge, skills or training needed for the job
- Other indicators of performance or ability, including performance evaluations, publications, prizes and awards, achievements, or other distinctions
- Other legitimate factors that conform to recognized principles of hiring and compensation within the professional area
Impermissible factors that CANNOT be used to justify wage differences for H-1B purposes: market conditions, lowered negotiated salaries, budget or grant funding constraints. An H-1B employee cannot receive a lower wage than similarly situated peers based on these factors.
Information Needed to Determine Wage Compliance Requirements
In order to ensure University compliance with the H-1B wage requirements, the International Center will ask hiring units and departments to prepare and provide detailed information prior to submitting an H-1B petition for an employee. The required information will be needed to complete the process of requesting an H-1B worker for the unit.
- A complete job description that includes the following information:
- employment start and end dates
- job location or locations (indicating where the employee will be situated when carrying out job duties)
- wage rate, expressed as an annual salary
- part-time FTE, if not full-time
- primary job duties, including supervisory responsibilities (if applicable)
- minimum educational and licensure requirements
- minimum years of required experience needed to carry out job duties, besides pre-professional training
- any other specialized knowledge or skills required for position beyond what normal hiring requirements
- A completed and signed Actual Wage Memorandum that reports on the number of similarly situated employees in the place of employment (e.g., the number of people holding the same title doing substantially similar duties) and the wages or range of wages paid to these individuals
- This memorandum does not include personal identifiers as it will be included in a Public Access file available upon request to the general public
- Actual Wage Supporting Documentation that identifies other employees hired to the same position, and explains any salary differentials in terms of permissible criteria, such as differences in education, experience, job function or responsibility, specialized knowledge and skills, other performance / ability related criteria
- This information will be submitted to the International Center via our secure online submission portal, and will be made available to the Department of Labor only in the event of a labor enforcement action
Failure to meet the required wage can be considered a serious violation of immigration regulations that can compromise Tufts' ability to sponsor H-1B workers. Please contact the International Center if there are any questions regarding the above requirements.