Payment that may be included in the rate of pay 

Under the DOL rule, the following payments may be included in the rate of pay for purposes of determining compliance with the "required wage rate" attestation:

• Any payment made to the H-1B worker in pro-rated installments (e.g.. per pay period), from which all the applicable taxes are withheld by the employer.

 If the employer gives the worker relocation payments, wage differential    payments, housing or food allowances, or other cash payments bundled with the worker's salary and paid per pay period with appropriate tax deductions, these payment may be included in the basic rate of pay.

• Any one-time or lump-sum payment that is not paid in prorated installments and that are (1) non-discretionary and an absolute commitment of the employer, and (2) calculated based on objective methodology.

The DOL's standard indicates that any bonuses or other one-time payments must not contain any element of discretion, thereby eliminating from consideration most performance bonuses dependent on the employer's profit. The only one-time or lumps-sum payments that would appear to meet the DOL standard are those that are guaranteed by contract or in writing to the worker and those that are established though an objective methodology, such as a guaranteed bonus system with payment amount clearly defined based on production levels of the employee.

• The value of the "in-kind " benefits that are not given to the employees as "cash," such as the value of a car, apartment, parking space, etc., provided they are reported to the IRA as earnings, they are not a recoupment of the employer's business expenses, and the employee has agreed in writing to be credited for his amount.

For further information, send your query to Aparna Davé.