tag:blogger.com,1999:blog-2399750140932278409.post2078640905363274853..comments2024-01-02T04:16:32.146-08:00Comments on The Insightful Immigration Blog – Commentaries on Immigration Policy, Cases and Trends: HEY BOSS, I NEED PREMIUM PROCESSING: CAN AN H-1B EMPLOYEE PAY THE PREMIUM PROCESSING FEE?Cyrus D. Mehta & Associates, PLLChttp://www.blogger.com/profile/02968992345997982326noreply@blogger.comBlogger2125tag:blogger.com,1999:blog-2399750140932278409.post-58661788142952348602013-07-28T07:49:51.420-07:002013-07-28T07:49:51.420-07:00This is how the DOL may view it, but another way t...This is how the DOL may view it, but another way to view it is that the required wage (the higher of the actual or prevailing wage) can go up or down. If there is a pay raise to all similarly situated employees, the actual wage and the required wage will go up. If there is a downward reduction in the wage to all similarly situated employees, the actual wage, so long as it does not fall below the prevailing wage, will go down, as well as the required wage. This is how Jan Pack, a DOL official, used to explain it at AILA conferences many years ago. Likewise, the actual wage to a unique employee can go up or down (so long as it does not fall below the prevailing wage and this could also involve a deduction), and thus the required wage can also go up and down accordingly. Unfortunately, AILA has not had liaison with DOL Wage and Hour to flesh these issues out further. <br /><br />In any event, the point we have tried to make in the blog is that premium fees that inure to the benefit of the employee should not be viewed as an employer business expense in the first place, which potentially has the effect of reducing the wage. Cyrus D. Mehta & Associates, PLLChttps://www.blogger.com/profile/02968992345997982326noreply@blogger.comtag:blogger.com,1999:blog-2399750140932278409.post-83208822635894772662013-07-28T04:40:50.797-07:002013-07-28T04:40:50.797-07:00Cyrus, the conclusions in this excerpt are not cle...Cyrus, the conclusions in this excerpt are not clearly correct, in my view, but I would be interested in your more detailed discussion:<br /><br />"where you have more than one similarly situated employee in a position (i.e., where the position is not unique) the deduction of the premium processing fee would always drop the wage below the actual wage. In positions that are unique, whatever is paid to the unique employee is the actual wage so the premium processing fee would not necessarily drop the wage below the prevailing wage."<br /><br />When I considered this topic for an article in Interpreter Releases several years ago, it seemed to me that the actual wage for an employee in a unique position would be that employee's regular salary. Are you saying instead that the actual wage is that salary minus deductions that must count against that employee's salary for comparing the net pay to the actual wage? That sounds problematically circular.<br /><br />I think your ultimate conclusion SHOULD be sound, but a DOL Wage & Hour administrator and ALJ could take other position, so we must warn employer about that, as you say. A technical review of the regulations could support a harsh view, but maybe the regs are ultra vires in this regard and should be challenged if DOL tries to enforce on that position.<br /><br />Best regards,<br />Robert C. Divine<br />My contacts and bio: WWW.bakerdonelson.com/robert-c-divine<br />Robert C. Divinehttps://www.blogger.com/profile/04099194595610223788noreply@blogger.com