Evidence Required to Prove Actual Wage in H-1B Visa Applications

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Key Takeaways

• Employers must provide comprehensive evidence, including Actual Wage Memorandum, to justify wages for H-1B workers based on internal standards.
• Documentation must include salary comparisons, job descriptions, pay policies, and external wage data when applicable, ensuring regulatory compliance.
• The Department of Labor enforces wage-setting rules; failure to meet them is a leading cause of H-1B petition denials.

The H-1B visa program requires United States employers to pay foreign workers either the actual wage or the prevailing wage for the job, opting for whichever amount is higher. Ensuring accurate determination of the actual wage is a key step in the H-1B petition process. Employers must present solid evidence that meets both their internal company standards as well as U.S. government regulatory requirements. This article lays out all necessary documentation, legal expectations, and steps employers must follow to support actual wage calculations effectively.

What Is the Actual Wage?

Evidence Required to Prove Actual Wage in H-1B Visa Applications

The actual wage is defined as the salary paid by an employer to other employees in the same workplace who perform the same job or have similar qualifications and experience. This wage should be determined based on objective, measurable criteria such as education, job responsibilities, years of experience, and other comparable factors. For any H-1B petition, the employer must extensively document the process by which the actual wage is determined and ensure all legal obligations are met.

Evidence Needed for Actual Wage Determination

Employers must gather a wide range of evidence to demonstrate that the wage they intend to pay an H-1B worker is appropriate and aligns with both internal and regulatory standards. The following sections cover the main types of documentation required.

1. The Actual Wage Memorandum

An Actual Wage Memorandum must be included in any H-1B petition. This document explains the wage paid to existing employees in similar roles and explicitly details the formula or method used to calculate the wage being offered to the H-1B applicant. It needs to be presented in a way that would allow someone outside the organization to fully understand the employer’s methods.

2. Supporting Documentation for Objective Factors

Employers are required to make decisions about the actual wage using objective factors. These factors could include, but aren’t limited to:

The amount of relevant work experience an employee has
The level of formal or specialized education
Core duties and expectations of the job
Specialized knowledge required to carry out the job effectively
Company-determined business needs such as specific skill demands

Employers must document how these factors are applied practically in determining the exact wage and demonstrate their relevance to the work.

3. Salary Comparison Within the Department

Employers need clear data regarding the salaries of others within the company who perform the same or similar jobs. This data should include:

A list of current employees holding similar titles
Salary amounts paid to each employee
A rationale for any differences in pay, which may be justified by unique experience or other business-related factors

All supporting data must be up-to-date and should reflect conditions at the time of filing the petition.

4. Internal Pay Policies and Records

Providing company-wide wage policies ensures fairness and consistency in application. Such documentation might include:

Existing salary structures or pay grades for the position in question
Any collective bargaining agreements that impact wage levels
Written policies about salary increases or reductions

This helps establish the company’s credibility in treating foreign workers and U.S. employees equally within the same role.

5. Full Job Description

A precise job description is necessary to outline the tasks, responsibilities, and expectations for the H-1B worker. The employer must clarify how these requirements match the worker’s qualifications and also compare them with those of other employees in similar roles.

6. Organizational Hierarchy

To show where the employee fits within the company structure, employers must provide an organizational chart. This chart should illustrate:

The H-1B worker’s position compared with other roles
Any comparable roles within the same department

The chart helps confirm whether wage-based differences are reasonable and backed by legitimate organizational structures.

7. External Wage Data, If Used

If an employer relies on external surveys or studies to determine the wage, these resources should be submitted with the petition. Employers must provide not only the results of the survey but also the methodology, sample size, and date, ensuring transparency in how wage levels were decided.

8. Comprehensive Compensation Breakdown

Employers should outline all parts of the compensation package offered to the H-1B worker. This includes:

Fixed base pay
Bonuses and possible incentive payouts, if guaranteed in the employment contract
Any benefits like stock options, if their value can be documented
Other allowances such as housing or relocation, if applicable

By laying out a complete breakdown, employers demonstrate transparency and support their wage determination.

9. Attestation of Compliance

Lastly, employers must submit signed documentation to attest that they comply with H-1B wage laws. By signing this attestation, they confirm that:

The offered wage will be no less than that paid to similarly qualified U.S. employees
The wage equals or exceeds the government-determined prevailing wage for that occupation
The H-1B worker will receive this compensation for the full duration of their employment

Regulatory Requirements and Employer Responsibilities

Adherence to government rules regarding wage-setting is a must. The Department of Labor (DOL) mandates that:

The actual wage must be based on internal workforce data and meet or exceed the prevailing wage set locally for the job.
If no comparable workers exist within the company, the wage offered to the H-1B worker becomes the actual wage by default.
The employer must continually update and review actual wage calculations, especially when amending or renewing petitions.

Employers should also retain all supporting wage documentation for inspection in case the DOL audits their practices in the future.

Trends and Recent Updates

Although as of 2025 no major updates have been made to actual wage determination rules, the DOL maintains strict oversight. Proposals for increasing baseline wage requirements for H-1B workers have been floated in Congress but remain unimplemented so far. For example, the much-discussed $90,000 minimum wage floor proposal has yet to become law. Employers are reminded, however, that careless or incomplete wage calculations remain one of the most common reasons for H-1B petition denials.

Employer Takeaways for Compliance

To strengthen an H-1B petition, employers should closely examine their internal salary structures and ensure that every element of wage determination follows government guidelines. Employers must:

Keep detailed and organized records of wage documentation.
Follow consistent methods for setting wages across all H-1B petitions.
Prepare for potential audits by the DOL through careful, proactive compliance measures.

By doing so, companies can protect themselves from legal risks while improving their chances of petition approval.

In conclusion, providing clear evidence of actual wage determination is an essential part of securing an H-1B visa. Employers must justify all wage-related decisions using internal data, comparison standards, and regulatory benchmarks. As reported by VisaVerge.com, gaining DOL approval for an H-1B petition largely hinges on employers staying consistent with wage-setting practices. For additional guidance, visit the U.S. Citizenship and Immigration Services (USCIS) website to access up-to-date regulations and forms.

By following this structured approach, businesses can ensure not only compliance with regulatory requirements but also equity in their hiring practices. This meticulous process helps create a stronger, smoother pathway to approval for both employee and employer alike.

Learn Today

H-1B Visa Program → U.S. program allowing employers to hire foreign workers for specialized jobs requiring theoretical or technical expertise.
Actual Wage → Employer-paid salary to workers based on qualifications, experience, and job duties within the same workplace.
Prevailing Wage → Government-determined minimum salary for a specific job in a local area, ensuring fair compensation standards.
Attestation of Compliance → Employer’s signed confirmation adhering to legal wage requirements for H-1B workers, submitted as part of the application process.
Department of Labor (DOL) → U.S. government agency overseeing labor laws, including wage-setting and compliance for H-1B visa employment.

This Article in a Nutshell

Navigating H-1B wage requirements can be daunting. Employers must meticulously document “actual wage” determinations, ensuring pay matches or exceeds the prevailing wage. Using clear policies, job comparisons, and transparent records is key. Compliance safeguards against legal risks and strengthens visa petitions. Precision isn’t optional—it’s the foundation for approval and equitable hiring success.
— By VisaVerge.com