Many foreigners pondering H-1 application frequently encounter the issue of whether the wage the prospective employer offers is sufficient for H-1 application. The most frequently asked question is whether bonus or commission can be counted as wage for H-1 application.
As many of you know, for H-1 application, the actual wage paid to the foreign employee must be at least 95% of the "prevailing wage". The question, therefore, is what can be counted toward, and be included in, the "actual wage" to be paid to the employee.
The rule of thumb is that only non-discretionary and guaranteed payment can be counted. As such, if the employer offers a position with a fixed salary lower than the prevailing wage standard, even if the position carries a bonus that is very likely to be earned by the employee, the position is still not qualified for H-1 approval. Further, how the payment is named is not important. Whether it is called bonus, commission, or even "salary", as far as it is performance-based, non-guaranteed, or "discretionary", it can not be counted into the actual wage paid to the employee.
Remind our friends looking for jobs for H-1B applications, please bear this in mind when negotiating with your prospective employers.