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Per diems on H1 B Visa

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  • Per diems on H1 B Visa


    I am supposed to travel in a month to the US (Illinois) through my employer (an IT company) for 6-8 months. The company is giving me accommodation and car (stay and travel). But it will not pay me any US salary except per diems of $40 USD every day. At the same time, my employer is also giving me Indian salary in India.

    Therefore in light of this, I have following queries:
    a) Whether it is legally allowed or possible to work on H1 Visa in US without salary and only through per diem which is mainly for food and other expenses ($40).

    b) If not, then how can I inform employer that this is wrong doing or policy gap? Is there any link or place where I can point the immigration team of my organization to check out from there. Currently immigration team is saying that there is no violation of rules even if a person travels on H1 for US but given per diem.

    c) Will per diems arrangement pose me any threat in terms of job change (H1 transfer to new employer) or any other legal action that might arise in near future?

    I am not sure whether payslips will be provided to me by employer in US or not sure what they will write as description - per diem expenses, etc. if provided

    Please help me out.


  • #2
    Per diem arrangements are not legal. Companies file a form called LCA with Dept of Labor before they file H1 petition. They are required to pay at least as much as the amount mentioned in the LCA. They are also required to give you a copy of the LCA. Monetary value of perks such as car and accommodation may be considered in this, but I don't think that will be sufficient to cover the LCA amount.
    If you do not get paid as per LCA, USCIS does not consider you to be maintaining H1 status (makes you out of status). It is not possible to change status or change employer within the US if you are out of status.
    Moreover, outside of immigration, there are tax considerations. You need to pay taxes on your worldwide income if you stay in the US for more than 6 months (approx) and that can also create complications.

    Ask your company how they mean to pay you as per LCA. Ask them to show you how the total compensation is in accordance with the LCA. Ask for everything in writing.
    This is my opinion and not legal advice.


    • #3
      To add to the below, you will also face issues with future petition approval, visa stamped and GC process if you ever go out of status (without proper pay slip in U.S that matches your LCA). Read the below links and understand your responsibilities as a H1B worker.

      Not a legal advice. Use of this information is strictly at your own risk.


      • #4
        Thank you so much Kabkaba and Shervin 143 for your prompt responses.

        I understand the legal complication now. But am sure that there is policy gap at my employer side.
        But as pointed out by kabkaba that even decent stay and rent-a-car will not suffice the LCA requirement, my employer will not be complying with the US laws and LCA requirement.

        I need to pursue this matter and need more followups with immigration team to sort out this matter.
        Still I would need some more help if any pointers or references will be provided on Deptt of Labor website or material which I can send to my immigration team in order to close this matter.

        Thanks again for all your support.


        • #5
          Google is your friend.
          This is my opinion and not legal advice.