Thursday, May 24, 2012

H-1B Workers Must Know Their Rights

In my practice of immigration and employment law, I am encountering with greater frequency H-1B employers who are abusing the H-1B non-immigrant work visa program by not abiding by the U.S. Department of Labor rules governing the employment of this category of temporary workers. It is essential that H-1B employees understand their legal rights and not allow their employers to disobey the rules they have agreed to abide by as a condition to employing them.

The H-1B visa is limited to skilled workers who help fill a void in the American labor force for which there has been determined to be a shortage of available workers. Employers who sponsor alien employees for H-1B visas must not only establish that the alien employees possess the necessary level of education and credentials required to performed a particular skilled occupation, they must also agree to pay their H-1B employees the prevailing wage rate for that particular skilled occupation in the area where the employer intends to employ the H-1B worker. The employer is required to complete a Labor Condition Application ("LCA") that is filed with the U.S. Department of Labor. The LCA identifies the name of the proposed employee, the skilled occupation to be performed by the employee, as well as the location where the employee will be working and the prevailing wage rate for the proposed job the employee will fill. As an H-1B employee, you have the right to obtain a copy of the LCA your employer filed on your behalf as part of the visa approval process.

The wage you are paid by your H-1B employer should reflect the same wage the employer is paying to its other employees with similar qualifications and experience. You are also entitled to receive the same fringe benefits that your employer offers to its other employees. More importantly, your employer is not permitted to reduce your pay due to lack of work or otherwise refuse to compensate you for your unproductive time. If the employer is no longer able to employ you at the wage provided on your LCA as a full-time employee, then the employer should cancel your H-1B visa and pay for your return trip back to your native country, or provide you the opportunity to transfer to another employer willing to sponsor you as an H-1B employee.

When accepting employment with an H-1B employer, be very careful about signing any written contracts that provide a liquidated damages clause or other liabilities that you are obligated to pay your employer in the event you terminate your employment before the expiration date of your work authorization. Your employer is not allowed to charge you for the filing fees, administrative fees, attorney's fees or other fees associated with the filing of your petition. The employer is also not permitted to impose a penalty on you for ending your employment prior to an agreed upon date. The employer must afford you the same working conditions (e.g., hours, shifts and vacation) as it does its other employees. An employer is not permitted to threaten, intimidate or threaten you with termination when you invoke your rights.

Your H-1B employer is required to begin paying you the prevailing wage rate as soon as you enter the country on your H-1B visa and "enter into employment," which occurs as soon as the employee first makes him/herself available for work or comes under the control of the employee. For example, if you are required to undergo orientation or training before you begin performing work tasks, the employer is required to begin paying you. If you are required to study for a licensing exam before you can begin work, your employer is still required to pay you. Under no circumstances should the employer fail to begin paying you later than 30 days after you enter the United States on an approved H-1B visa or within 60 days of the date listed on your approval notice that you are eligible to begin work, whichever is earlier.

Employers may relocate you to a new location or job site after you enter into employment. Federal regulations, however, require your employer to complete a new LCA for your change in employment status to ensure that your pay is at least the prevailing wage rate. You have a right to obtain a copy of the updated LCA your employer has filed with the U.S. Department of Labor.

It is important that you understand your rights. If you believe your employer is violating your rights, there are remedies you can pursue through the filing of formal complaints with the U.S. Department of Labor. You may also have separate claims against your employer for unpaid wages under an applicable federal or state law. You are highly encouraged to contact an attorney to learn more about your rights.