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While speaking with a coworker I discovered that he is being compensated below the legal threshold.

I made this determination based on the following: http://internationaloffice.berkeley.edu/h-1b_faqs#6

It states:

[T]he employer ... must ... pay the H-1B employee the prevailing wage or the actual wage, whichever is higher.

I looked up his occupation for the area in which we work and live here: http://flcdatacenter.com/OesWizardStart.aspx

My coworker is very smart and hardworking. But he is afraid that if he even hints at any dissatisfaction in his pay, he will be terminated. We work for a Fortune 500 company. What can I do as a fellow coworker to help ensure he is being treated fairly? I honestly don't care if speaking up threatens my job security. Should I simply encourage him to talk to his manager (already did this)? Should I talk to his manager? Should I talk to mine? Should I go to the Ombudsman?

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The correct thing to do is to lodge a complaint with the Dept of Labor using their WH-4 form available online here.

Pretty much anyone with knowledge of the issue can make the complaint - it doesn't have to be the individual concerned.

The DoL will investigate the complaint, and has the authority to access the company's salary data and compare the salary of the employee(s) concerned with those around them to determine if any of the H-1B rules are being broken.

However - there may be repercussions ... complaints like these obviously don't just appear out of thin air.
It would be illegal for the company to fire someone for making a report to the DoL, but they could always make up another reason.

The real question here though is: is this person being paid the amount which was specified on the Labor Condition Application (LCA)?
The employer is legally required to give the H-1B employee a copy of this form (which they submitted to the DoL in order to get the H-1B visa approved), and this form specifies the 'Level' and the salary which will be paid to the person.
If the actual pay meets or exceeds the number on the LCA then the only other cause for complaint is that the 'Level' was classified incorrectly (in order to 'justify' a lower salary).
For example Level 1 would be a very junior position - almost an intern/trainee, while Level 4 is a manager/supervisor role and should be paid significantly more.

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  • He has a Phd. His title does not contain the term "senior." He has worked here for >5 but <10 years. So I believe that means Level 2. Would you agree?
    – toshiomagic
    Jun 20, 2017 at 21:07
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    There seems to be an assumption that what the worker stated is 100% true. Perhaps some of the compensation this person is receiving is non-monetary (ie. housing, fees paid for VISA, stock options, fully paid benefits other must contribute to, other options/compensation not disclosed by said employee).
    – Andieisme
    Jun 20, 2017 at 21:18
  • Well - it's the position & nature of the work with determines the level classification, but if a Phd or similar is required then I would expect it would be at least a 2 or 3.
    – brhans
    Jun 20, 2017 at 21:18
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    @Andieisme - The H-1B rules specifically prohibit the employer from making any attempt to recover visa fees from the employee. They can't be included in or deducted from the salary. Similarly, the number on the LCA must be the guaranteed minimum cash income (before tax) which the employee will receive and cannot include bonuses, stock options (or actual stock), etc.
    – brhans
    Jun 20, 2017 at 21:21
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    Just remember that you might be putting his job on the line too - not just yours - even if it is illegal for the employer to retaliate. Don't do it without his consent (even if he wants to claim no involvement later). I only submitted my complaint after I moved on to a much more honest & respectable employer ...
    – brhans
    Jun 20, 2017 at 21:56

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