| An all too common question that immigration law | | | | properly terminated unless the employer tells |
| attorneys dealing with H1B cases encounter is | | | | USCIS that the relationship has been terminated |
| whether it is possible for an H1B worker to port | | | | so that USCIS may cancel the I-129 petition, and |
| his or her employment to a new company if this | | | | the employer must provided the employee |
| worker does not have recent pay stubs. | | | | payment to fly back home. Case law precedents |
| Consider the example of R.S. Singh. After Singh | | | | dictate that even in cases where the employer |
| graduated with distinction from a reputable Indian | | | | notified the employee, but not USCIS of the |
| university, he was offered a job by a US | | | | termination, the H1B remained valid until the end |
| consulting firm, YKK Infosys, promising to pay him | | | | of the LCA period, and the former employee is |
| $60,000 a year as a systems analyst. YKK filed | | | | able to collect back pay with interest. In one case, |
| his H1B petition with the US Citizenship and | | | | where the employer was found to have violated |
| Immigration Service, and the petition got | | | | H1B/LCA regulations on numerous occasions, the |
| approved. Shortly thereafter, Singh obtain his visa | | | | DOL Wage and Hour division successfully pursued |
| and gained admission to the US. | | | | a backpay award of over $980,000. |
| As soon as Singh arrived, willing and able to work, | | | | Employers may claim the employee acted in bad |
| the employer put Singh on "bench" without pay. | | | | faith as well, but still, the employer was held |
| He was told that he would only be paid if he was | | | | responsible. Even in a case where the employee |
| placed on a project. The employer took some | | | | misrepresented his credentials, given the employer |
| initiative to market him to potential client | | | | a reason to terminated him, because the |
| companies with no success. A few months later, | | | | employer did not notify USCIS, the clock requiring |
| through Singh's own job-hunting efforts, he found | | | | the employer to cover backpay continued to run. |
| a project and was finally put to work... for 4 | | | | Note that damages accrue from the time the |
| months. During those 4 months of work, Singh | | | | employee makes him or herself available for |
| worked 50-60 hours a week, produced excellent | | | | work. Even if there is no work available, the |
| quality work, but was paid a paltry $2000 a | | | | employer may not use that as an excuse not to |
| month - well below the prevailing wage of a | | | | pay the employee. |
| systems analyst. Of course, YKK was skimming | | | | Other Legal Damages: In addition to the DOL |
| their share of several thousands of dollars from | | | | requiring the employer to pay fines and back pay |
| the client. Once again, Singh would have to look | | | | for its violations, an aggrieved H1B worker can, |
| for work while his employer paid him nothing. | | | | for example, seek a claim in federal court based |
| As bad as the above scenario seems, in some | | | | on RICO violations. Potentially, the employer could |
| cases, it has been observed that companies run | | | | be required to pay triple the value of unpaid |
| an audacious scheme in which they charge a | | | | wages ("treble damages") in addition to attorney |
| thousand dollars or more to the foreign worker | | | | fees. |
| just to file the H1B, and if approved, they charge | | | | In reality, the majority of consulting companies |
| several thousand more dollars to file for the visa | | | | are legitimate business operations. The above |
| to bring them in. Returning to our example, | | | | liabilities should be considered a warning to |
| months later, Singh finally found a legitimate | | | | companies who think they are being fair to |
| employer who offered to port his H1B | | | | employees who they are no longer able to |
| employment. The new employer's immigration | | | | support. Because for every situation like Singh's, |
| attorney requested that Singh provide his pay | | | | there is a situation where an employer pays their |
| stubs for the past three months to show proof | | | | H1B employee well, but unfortunately has to |
| that he was maintaining his H1B status. | | | | terminate the employment prematurely because |
| Singh replied that he had none, and was worried | | | | of a sudden downturn. Following the book, the |
| that he was out of status as a result. | | | | employer informs the employee that it will be |
| Unfortunately, many H1B workers do not realize | | | | terminating the job and paying for the employee's |
| they have a lot of power with the law being on | | | | airfare to return home. |
| their side, and quietly endure months of hardship. | | | | But then the employee might plead with the |
| They fear that if they complain too much, their | | | | employer to "park" their H1B, and offer to pay |
| employer will just notify USCIS that the position is | | | | the employer to run pay roll because that |
| terminated, and force the worker to return to | | | | employee would rather not return home. In such |
| their home country. In reality, as an H1B worker, | | | | a case, the employer is obviously running a risk in |
| Singh has the opportunity to file a complaint to | | | | trusting that the employee will not later report |
| the Department of Labor to obtain unpaid wages, | | | | them for illegal benching. The message is that H1B |
| and can use this complaint in lieu of pay stubs. | | | | employees should recognize the fact that they |
| This gives any illegally benched employee a lot of | | | | have rights, and honest and dishonest H1B |
| leverage against his unscrupulous employer. | | | | employers alike should realize that they have to |
| Consider the following liabilities that YKK would be | | | | be very careful not to violate these rights. |
| potentially subjected to: | | | | This article is made available by the lawyer or law |
| General Penalties: Failure to comply with all LCA | | | | firm publisher for educational purposes only as well |
| requirements may result in fines from $1,000 to | | | | as to give you general information and a general |
| $35,000 per violation, and debarment from all | | | | understanding of the law, not to provide specific |
| future approvals of visas or Labor Certifications | | | | legal advice. By using this website you understand |
| for at least one year. | | | | that there is no attorney client relationship |
| Back Pay: In cases where the employer does not | | | | between you and the website publisher. The |
| pay prevailing wage, it can be ordered to pay | | | | website should not be used as a substitute for |
| backpay to make up for the deficiency. The | | | | competent legal advice from a licensed |
| obligation to pay the employee may not be | | | | professional attorney in your state. |