Legal Question in Immigration Law in California

Re: h1b visa salary cut

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Re: h1b visa salary cut

Yes, you most certainly need an H-1 amended petition to change your wage. That is considered a "material" change - one that requires amendment. Otherwise, you could be seen as in violation of your status. Also, if by cutting your wage that much puts your wage below the required wage, which is the higher of the prevailing wage and wages paid to other similar workers, then the cut could also be a wage violation by the employer. It's possible it's not a wage violation of the employer, depending on the figures which I could advise you on if you consult me privately, but nevertheless, it could still be seen as a status violation: which is something you should be proactive about.

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Alice M. Yardum-Hunter, Attorney at Law, Certified Specialist, Immigration & Nationality Law, State Bar of CA, Bd. of Legal Specialization

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Re: h1b visa salary cut

I disagree with the prior attorney's answer. Although it is true that the required wage to be paid to an H-1B worker is the higher of the prevailing wage and the wage paid to similar workers in the same occupation, if the cut in this case is "across the board" then it also affects other similar workers in your company AND it results in your wage equaling the prevailing wage. Thus, you are being paid at the prevailing wage that was the original basis for your H-1B petition. This wage reduction is legal then, in my opinion. And, it is not a "material change" in the terms of your H-1B employment, in my opinion. That is, this is not a change so great that USCIS would presume your position has been changed into a new one, which is the real test.

Because there has not been a material change in the terms of H-1B employment, no amended petition is necessary. However, when it is not such a clear-cut situation, as here, it would not hurt to file an amended H-1B petition anyway to be safe, especially since the filing fee is only the base fee of $320 for the I-129.

Larry L. Doan, Esq.

(Straight-talk on Immigration Law at www.GuruImmigration.com)

Note: The above response is provided for information only and should not be construed as legal advice, nor to create an attorney-client relationship, which can only be established through payment of consideration.