H1b benching rule

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H1b benching rule

The H-1B visa program should help U. Yet, too many American workers who are as qualified, willing, and deserving to work in these fields have been ignored or unfairly disadvantaged.

H-1B Program

Employers who abuse the H-1B visa program may negatively affect U. USCIS continuously works to deter and detect fraud in all immigration programs and we are furthering our efforts by enhancing and increasing site visits, interviews, and investigations of petitioners who use the H-1B visa program. These efforts will help assist in the prosecution of program violators and ensure that American workers are not overlooked or replaced in the process. Anyone including American workers and H-1B workers who suspect they or others may be the victim of H-1B fraud or abuse can send us tips, alleged violations, and other relevant information about potential fraud or abuse using our online tip form.

If an H-1B worker reports suspected fraud or abuse, immigration law may provide certain protections to these workers. If an H-1B worker:. Sincewe have conducted random administrative site visits to ensure that employers and foreign workers are complying with requirements of the H-1B nonimmigrant classification.

This action is not meant to target nonimmigrant employees for any kind of criminal or administrative action but rather to identify employers who are abusing the system.

New DHS \u0026 DOL Regulations: Higher Prevailing Wages and Other Changes for H-1B Green Card Employees

We also conduct site visits in cases where there are suspicions of fraud or abuse and refer many of the cases to our counterparts at U. Targeted site visits will also help us determine whether H-1B-dependent employers who normally must meet H-1B recruitment attestation requirements are actually paying their workers the statutorily required salary to qualify for an exemption from these requirements. These site visits will assist in determining if these employers are evading their obligation to make a good faith effort to recruit U.

Targeted site visits will allow us to focus resources where fraud and abuse of the H-1B program may be more likely to occur. We will also continue to make unannounced and random visits to all H-1B employers across the country, both before and after any petition is adjudicated.

Pandemic Response Shouldn't Trigger H-1B No-Benching Rule

Transparency about how the H-1B program is being used is vital to ensuring accountability for employers and improving policies and practices that protect American workers. Reporting Suspected H-1B Fraud or Abuse Anyone including American workers and H-1B workers who suspect they or others may be the victim of H-1B fraud or abuse can send us tips, alleged violations, and other relevant information about potential fraud or abuse using our online tip form.

There is a wage disparity between H-1B workers and other workers performing the same or similar duties, particularly to the detriment of U.

h1b benching rule

The H-1B worker is not performing the duties specified in the H-1B petition, including when the duties are at a higher level than the position description. The H-1B worker has less experience than U. Expansion of Site Visits Sincewe have conducted random administrative site visits to ensure that employers and foreign workers are complying with requirements of the H-1B nonimmigrant classification.

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Starting this month, we will take a more targeted approach focusing on: H-1B-dependent employers those who have a high ratio of H-1B workers as compared to U.

Promoting Transparency Transparency about how the H-1B program is being used is vital to ensuring accountability for employers and improving policies and practices that protect American workers.Nonimmigrant workers in the United States have various rights and protections accorded to them under immigration laws and Department of Labor DOL regulations.

By law, the only way an employer can stop paying an H-1B employee their wages is by bona fide termination. For example, say Tom is working in the United States under H-1B status and during the economic downturn his company experienced a period of non-productivity.

This would be a case of benching. An employer has more obligations to their H-1B worker than simply ensuring they are being paid their wages, however.

The DOL has clearly outlined the specific legal obligations of employers towards their employees when hiring H-1B workers.

Employee Benching

These obligations include:. The purpose of regulating benching is twofold: on the one hand, the DOL seeks to protect H-1B workers from unfair treatment by their employers based on their foreign status.

The concern is that employers will regularly underpay or bench foreign workers in order to cut costs. On the other, the DOL also wants to ensure that U.

If employers feel they can pay their H-1B employees less than the prevailing wage for their assigned job, it could be detrimental to the U. Nonproductive pay requirements begin with the earliest of the applicable following events:.

For example, an employer is not liable to pay lost wages if an H-1B employee takes extra time off on top of their covered maternity leave. For more information on benching, see the U.

For example, in one benching case brought before the DOL, an H-1B worker employed as a dentist left the clinic he worked at with his employer to become a partner with the same employer at a recently opened clinic in a neighboring state. The employee did not receive any wages at the rate established under the LCA at the beginning of his employment when he moved to the new clinic; rather, he only received a share of the profits as a party of a business arrangement with his employer.

The two clinics were not separate legal entities. His employer argued that, rather than not paying the H-1B worker his due wages, their employer-employee relationship was terminated when the worker moved to the new clinic and that he was no longer liable to pay the back wages under the changed circumstances. Furthermore, the employer argued that by not reporting the change in situation to the DOL the H-1B worker was committing fraud and should therefore not be entitled to recover his owed wages.

For the full case, see Administrator, Wage and Hour Division v. Avenue Dental Care. In another case, Administrator, Wage and Hour Division v. The company, among other things, was unable to provide documentation supporting the prevailing wages they attested to in the LCAs filed with the DOL. The company was paying its employees less than the appropriate wage rate for their jobs.Nonimmigrant workers in the United States have various rights and protections afforded to them under immigration law and Department of Labor DOL regulations.

Benching occurs when an employer fails to pay an H-1B employee, as when business is slow, for example. However, by law, the only way an employer can stop paying an H-1B employee his or her wages is by bona fide termination. Benching is illegal.

Elfie Jones, an H-1B beneficiary, is employed at a workshop manufacturing high-tech toys. His sponsoring employer is Santo Nicholas. Because these toys are only needed for one month of the year DecemberSanto tries to save some money and stops paying Elfie his wages for the other 11 months of the year.

In this case, Santo is being naughty by engaging in the illegal practice of benching. An employer has more obligations to its H-1B workers than simply ensuring they are being paid their wages. DOL has clearly outlined the specific legal requirements employers have to fulfill, a full list of which can be found here. These obligations include:.

The employer will guarantee that employment of the H-1B worker will not adversely affect the working conditions of workers similarly employed. Alternatively, if no such person exists, then the employer will conspicuously post such notice at the worksite on or within 30 days before filing the LCA.

The employer must agree to pay the alien the return costs to his or her home country if employment is terminated by the employer prior to the end of the authorized employment period. Employers failing to adhere to these basic requirements face potential penalties. In some cases, employers may even be prohibited from participating in the H-1B or other programs for at least one year. In other words, even in instances of plant closures, holidays, or other periods of nonproductive time, which affect both U.

The requirement stands even if U. Some practices, however, do not fall under benching. The purpose of prohibiting benching is twofold. First, DOL seeks to protect foreign workers from unfair treatment by their employers. The underlying concern is that employers will regularly underpay or bench foreign workers in order to cut costs.

Second, DOL wants to ensure that the job opportunities and wages of U. If employers feel they can pay their H-1B employees less than the prevailing wage for their assigned job, for example, it could be detrimental to the job market for U. We review three below. The employee did not receive any wages at the rate established under the LCA when he moved to the new clinic; rather, he only received a share of the profits as a party of the business arrangement with his employer.

The two clinics were not separate legal entities. Legal action ensued. According to DOL, since the original clinic was still listed on the LCA as the employer, the employer was in effect benching the H-1B employee and was therefore required to pay back wages.

For the full Administrator, Wage and Hour Division v. Avenue Dental Care case, click here. In reality, the company was paying its employees less than the appropriate wage rate for their jobs.This clause does not apply to a failure to pay wages to an H—1B nonimmigrant for nonproductive time due to nonwork-related factors, such as the voluntary request of the nonimmigrant for an absence or circumstances rendering the nonimmigrant unable to work.

The ACWIA provisions recognize, however, that the employer should not be liable to pay wages for the worker's time which is nonproductive for reasons attributable to the employer, such as the worker's hospitalization or requested leave-of-absence consistent with the conditions related to the H-1B worker's maintenance of legal status in the U. In contrast, payment is not due when the nonproductive time is due to non-workrelated factors, such as the voluntary request of the nonimmigrant for an absence or circumstances rendering the nonimmigrant unable to work.

Therefore the Department cannot interpret the Act to allow employers to be relieved from payment for periods where the employer's business is shutdown, regardless of whether it affects U. The employer must pay the guaranteed minimum hours unless the H-1B worker is unavailable for work because of non-work related factors, such as the worker's own voluntary request for time off, or in other circumstances where the worker is unable to work.

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Expert Analysis - Opinion. Pandemic Response Shouldn't Trigger H-1B No-Benching Rule By JoAnna Gavigan and Aron Finkelstein Law is providing free access to its coronavirus coverage to make sure all members of the legal community have accurate information in this time of uncertainty and change. Use the form below to sign up for any of our daily newsletters.

Signing up for any of our section newsletters will opt you in to the daily Coronavirus briefing. Sign up for our Compliance newsletter. You must correct or enter the following before you can sign up:. Primary area of interest Access to Justice. Asset Management. Capital Markets.Because of this, there may be times of no work or payment while in the US on an H1B visa. Firms that utilize this practice can face lawsuits under US labor and immigration laws, but that does not really help the foreign nationals who rely on their H1B visa to retain legal status in the US.

The real test for remaining in the US on an H1B visa is getting paid, rather than actually having work assigned. To maintain immigration status you must submit pay stubs as proof that you are working, but what if your employer is not paying you? There are several options available:. If you were benched without pay, it is possible to pursue a claim against the employer.

You can first demand 3 months of pay stubs which will give you the right to change employers while maintaining status. You can also simply request to be given paid work, and this may be the easiest first step.

The employer might be concerned that any further action that you take will call attention to their illegal benching activity. However, if you were not paid, obtaining fake pay stubs is illegal, so there is another alternative that is better. If you objected or made a complaint with your employer, keep some record of it since you may need it to prove you attempted to remedy the situation.

If you have a valid H1B visa in your passport you can find a new employer who will sponsor a new H1B visa for you. The only caveat is that the H1B visa should be valid long enough to file the new petition, and part of that validity may mean showing pay stubs from the original employer. In some cases, it may be easier to leave the US and seek a new sponsor, preferably one that does not have a reputation for benching. If you have questions about benching and how to maintain your H1B visa status, please contact us for guidance.

My Emoloyer not providing pay stubs on time but I want to change the Employer.

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Please suggest what do on this. Is it possible with out pay stubs can I transfer to other employer. Your email address will not be published. Notify me of follow-up comments by email. Notify me of new posts by email.

Make a Complaint With Your Current Employer If you were benched without pay, it is possible to pursue a claim against the employer. Leave a Reply Cancel reply Your email address will not be published.Many employers financially strained by the coronavirus outbreak are considering employee furloughs rather than outright layoffs, especially given the hopefully short duration of the crisis. It is not limited to consulting arrangements, however, and essentially, it requires that an H-1B employee be paid the wage specified in the visa petition continuously through the date of final termination of her employment with the employer sponsor, even when she has no duties.

Similarly, if the visa was issued for a full-time position, the rule effectively bars the employer from reducing the employee to part-time work and cutting her pay accordingly without filing an amended visa petition. Department of Labor as the first step in the visa process, in which the employer attests that it will comply with this and other wage-related rules of the H-1B program. The requirement applies regardless of any state law that otherwise would not prohibit a furlough.

As a consequence, an employer who purportedly furloughs an H-1B employee can be subject to an administrative complaint to the DOL for failure to pay the specified wage during that period, or to an enforcement proceeding initiated by the department itself in the absence of a complaint, such as during a random audit. The department has the power to order back wages and interest, as well as to impose fines on the employer.

In other words, no cost-savings are ultimately available to the employer even though the employee is in fact temporarily relieved of duty.

As a result, the best practice for an employer in normal economic times with exceptions beyond the scope of this article is to send a written notification to the Department of Labor each time that an H-1B employee is discharged, specifying the precise last day of work.

The same will generally be prudent in a coronavirus-related layoff. Not only will she lose her income, but ending the employment on which the visa is premised will also end her valid stay in the United States, and the stays of any spouse and dependents whose visas are derived from hers.

h1b benching rule

Crucially for purposes of a contemplated furlough, this includes resuming employment with the same employer. Astute readers will notice that the disparate treatment that this rule incents, as between foreign-national H-1B visa holders and U. As a general matter, an employer is not required either to sponsor for a visa a foreign-national candidate whom it would otherwise be willing to hire, nor to continue the employment of a visa holder just because it previously undertook to sponsor him.

But employment discrimination rules still apply. The law in this area, particularly as applied to layoffs, is not heavily developed, and employers for whom it presents a potential risk should take particular care to obtain detailed advice of counsel on planned reductions in force. To date, we are not aware of any emergency guidance or policy from the Department of Labor that would relax the no-benching rule to permit furloughs, rather than layoffs, of H-1B employees by employers that are in distress due to the outbreak.

Search for:.Federal government websites often end in. The site is secure. The H-1B program applies to employers seeking to hire nonimmigrant aliens as workers in specialty occupations or as fashion models of distinguished merit and ability. The intent of the H-1B provisions is to help employers who cannot otherwise obtain needed business skills and abilities from the U.

The law establishes certain standards in order to protect similarly employed U. Employers must attest to the Department of Labor that they will pay wages to the H-1B nonimmigrant workers that are at least equal to the actual wage paid by the employer to other workers with similar experience and qualifications for the job in question, or the prevailing wage for the occupation in the area of intended employment — whichever is greater.

Read More. H-1B Program.

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Overview The H-1B program applies to employers seeking to hire nonimmigrant aliens as workers in specialty occupations or as fashion models of distinguished merit and ability.

In addition, willful violator employers are subject to random investigations by the Department of Labor for a period of up to five years from the date that the employer is determined to be a willful violator. Below is a table that reflects the adjustments that have occurred for penalties under this statute.

For more information on the penalty adjustments, go here.


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