TLDR: H-1B compliance violations are costing companies millions in back wages, penalties, and debarment from the program. The most common mistakes HR teams make include paying below the required prevailing wage, misclassifying wage levels, failing to maintain proper Public Access Files, and illegally “benching” workers without pay during slow periods. Understanding the difference between prevailing wage and actual wage requirements, maintaining meticulous documentation, and ensuring H-1B workers receive continuous payment even during non-productive time are critical to avoiding Department of Labor investigations and protecting your company’s ability to hire global talent.
Managing H-1B workers comes with compliance responsibilities that many HR teams don’t fully understand until it’s too late. A single payroll mistake can trigger Department of Labor investigations, result in hundreds of thousands of dollars in back wages, and lead to debarment from the program.
H-1B wage compliance is more complex than standard payroll. It involves specific regulations that differ from how you pay U.S. workers, requires detailed documentation beyond typical personnel files, and demands continuous payment obligations that catch even experienced HR professionals off guard.
Understanding the Prevailing Wage vs. Actual Wage Requirement
One of the biggest areas of confusion is the dual wage requirement for H-1B workers. You must pay whichever is higher: the prevailing wage or the actual wage.
What Is Prevailing Wage?
The prevailing wage is the minimum wage determined by the Department of Labor for a specific occupation in a specific geographic area based on Occupational Employment Statistics. It’s broken into four levels:
- Level 1 (17th percentile): Entry-level positions
- Level 2 (34th percentile): Qualified workers
- Level 3 (50th percentile): Experienced workers
- Level 4 (67th percentile): Fully competent workers
The wage level you select when filing the Labor Condition Application must accurately reflect the actual job requirements.
What Is Actual Wage?
The actual wage is what you pay other employees in your company who have similar experience and qualifications for the same role. If your salary band for senior engineers in your NY office already sits above the prevailing wage for that position, that internal figure becomes the controlling floor for your H-1B workers.
You cannot reduce an H-1B worker’s pay to match a lower prevailing wage and remain compliant with your Labor Condition Application commitments.
The Wage Level Misclassification Trap
Many employers underestimate the appropriate wage level to save on costs. This is common in tech, where companies assign senior or lead positions to Level 2 wages, even though these roles should command Level 3 or 4 compensation.
The DOL’s guidance is clear: job titles with “lead,” “senior,” or “principal” typically indicate experienced workers at Level 3 or higher. Misclassifying positions can trigger investigations.
The “Benching” Problem: When No Work Doesn’t Mean No Pay
Perhaps the most expensive compliance mistake HR teams make is “benching”, placing H-1B workers on unpaid leave during slow periods or between projects. This practice is illegal and has resulted in multimillion-dollar penalties.
What the Law Requires
Under H-1B regulations, employers must continue paying H-1B workers the required wage rate during all non-productive time caused by employment-related conditions, including:
- lack of assigned work or projects;
- waiting for necessary permits or licenses;
- time spent studying for required licensing exams; and
- periods between client assignments (for consulting firms).
Your obligation to pay only stops with a bona fide termination of employment. Simply putting someone on unpaid leave or suspension is not a termination and does not relieve you of wage obligations.
When Payment Isn’t Required
There are limited exceptions when you don’t need to pay during non-productive periods:
- The worker takes voluntary leave for personal reasons (touring, caring for family)
- The worker is unable to work due to personal circumstances (maternity leave under FMLA, personal medical issues)
- The non-productive time is covered under your standard benefits plan that applies to all employees
The key distinction is whether the non-productive time is employment-related (your responsibility to pay) or personal (not your responsibility, if it’s truly voluntary and not subject to payment under your benefits plan).
Real Consequences
In 2005, the Department of Labor investigated a Michigan tech firm that routinely benched H-1B workers without pay. The company was ordered to pay 232 workers $2.25 million in back wages, assessed a $400,000 fine, and barred from the H-1B program for 18 months. More recently, courts have awarded over $250,000 in back wages to benched workers and held company officers personally liable.
Public Access File Failures
Every H-1B employer must maintain a Public Access File (PAF) for each Labor Condition Application containing:
- Certified Labor Condition Application
- Prevailing wage determination documentation
- Actual wage system explanation
- Proof of posted notices
- Benefits information
Common mistakes include missing documentation, mixing in confidential information (Social Security numbers, I-129 forms), outdated information, late availability, and early disposal. The PAF must be available within one business day of filing the LCA and retained for at least one year beyond the last date of H-1B employment.
Remote Work and Geographic Changes
With remote work, employers often fail to file new Labor Condition Applications when H-1B workers relocate. The prevailing wage is location-specific, if your worker moves from San Francisco to Austin, you must file an amended or new LCA reflecting the new wage for that area.
Payroll Documentation Requirements
Maintain complete records including pay stubs, time records for hourly workers, documentation of deductions, wage rates for comparable employees, and proof of required wage payment. Records must be kept from LCA filing through one year after employment ends.
What Triggers Investigations
Common red flags include employee complaints, payroll inconsistencies during USCIS site visits, suspiciously low wage rates, gaps in pay stubs, incomplete Public Access Files, and patterns of hiring H-1B workers at predominantly Level 1 or 2 wages for senior positions. The statute of limitations on benching claims is one year after termination.
Building a Compliance-First Culture
Avoiding these mistakes requires systematic processes:
- Conduct regular audits of LCAs, payroll, and Public Access Files
- Train managers on H-1B requirements
- Establish clear communication channels for H-1B employees
- Document everything meticulously
- Stay current on regulatory changes
- Coordinate across HR, legal, and finance teams
H-1B Compliance Mistakes Have High Costs
H-1B compliance isn’t optional, and ignorance isn’t a defense. The Department of Labor aggressively enforces these rules, and violations can result in back wages, substantial fines, program debarment, and even personal liability for company officers.
The good news is that most compliance issues are preventable. With proper systems, training, and attention to detail, you can successfully manage your H-1B workforce without putting your company at risk.
If you’re uncertain about any aspect of your H-1B compliance, particularly around wage requirements, benching policies, or Public Access File maintenance, it’s worth consulting with experienced immigration counsel before problems arise. Berardi Immigration Law can help you start your stress-free U.S. business immigration journey today.
Frequently Asked H-1B Questions
Q: Can I pay H-1B workers less than U.S. workers if the prevailing wage is lower?
No. You must pay the higher of either the prevailing wage or the actual wage (what you pay similarly qualified U.S. workers). You cannot use the H-1B program to pay foreign workers less than your domestic workforce for the same role. If your internal salary range for a position is $120,000 but the prevailing wage is only $100,000, you must pay the H-1B worker at least $120,000.
Q: What happens if I need to place an H-1B worker on unpaid leave due to lack of work?
You generally cannot place H-1B workers on unpaid leave due to lack of work, that’s illegal benching. Your only options are to continue paying them the required wage even during non-productive time, or to properly terminate their employment (which requires notifying USCIS and giving them the 60-day grace period to find new sponsorship or leave the country). If the leave is truly voluntary and at the employee’s request for personal reasons, payment may not be required, but this must be well-documented.
Q: How long do I need to keep H-1B payroll and compliance records?
You must maintain all H-1B documentation, including Public Access Files, LCAs, wage records, and related documents, for one year beyond the last date of employment under that LCA. The IRS also requires payroll records to be kept for at least four years for tax purposes. Given these overlapping requirements, it’s safest to maintain comprehensive H-1B records for at least four years after employment ends.
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