As an H-1B employee, you have rights. H-1B employers are heavily regulated under both US immigration law and US employment law. If you are an H-1B worker, and are being taken advantage of by your employer, do not despair!

First, the H-1B employer is legally obligated to pay the USCIS filing fees for the H-1B petition and any extensions, and may not pass those costs on to the employee. Additionally, if payment of the attorneys fees by the employee would reduce the employee’s wage below the prevailing wage, the H-1B employer also is prohibited from passing those costs on to the beneficiary employee.

Second, the employer must pay you either the prevailing wage or the actual wage paid to other employees in the same position, whichever is higher, depending upon the geographic location and level of experience. The employer is also obligated to provide you with a copy of the LCA (Labor Condition Application) which is filed with your H-1B petition, and states the wage that the employer is obligated to pay you. The employer must provide the H-1B worker with a copy of the LCA when he or she reports for work. If your employer has not given you a copy of the LCA you can request it, or ask to review the public inspection file, which the H-1B employer must make available to anyone who requests it. So, for example, if your employer initially stations you in Iowa, at the prevailing wage for that locality, and then transfers you to say, New York City or Dallas Texas, your salary should be increased to meet the higher prevailing wage for those locations. Additionally, if there are other US workers in the same position, at the same level, you should be paid the same amount (assuming all other factors equal).

Third, the H-1B employer must offer you the same benefits and terms and conditions of employment as they offer their US worker employees. So, if you are a teacher and all the other teachers are provided with health insurance, disability insurance, 401K, you are entitled to the same benefits. The H-1B employer is also obligated to treat you the same as its other employees. So, for example, if the US workers in the same position are only expected to work 40 hours per week and leave at 5:00 p.m. everyday, but you as an H-1B worker are expected to stay late or work the weekends for the same pay, you would have a claim against your employer.

Fourth, if your employer benches you (meaning tells you to stay home in non-productive status), or furloughs you, promising to re-hire you in a certain period of time, the employer is obligated to continue paying you the obligatory wage during that time that you are not doing actual work. This also applies if the employer hires you, but does not put you on payroll because you are waiting to obtain your state license or permit. If your employer does not pay you during this time period, the employer is liable for not only back pay but also civil money penalties for each violation, and additional penalties if the employer committed fraud or willfully failed to pay you the wage.

Fifth, if your employer terminates you, the termination must be in writing. If an H-1B employer terminates you only verbally, and does not provide you a written termination, then you continue to have a claim against the employer for unpaid wages during that time.

Sixth, H-1B employers are prohibited from taking retaliatory actions against their H-1B employees for asserting their rights.  Thus, if you complain the employer is prohibited by law from demoting you, terminating you, or taking other retaliatory action against you.

Seventh, if the employer terminates you, and you wish to return to your home country, your former employer is obligated to provide you with the airfare to return home. The employer may either purchase an airline ticket for you, or reimburse you for the expense of your return trip.

Finally, if you stay quiet and do nothing, USCIS may later find you out of status. For example, if the prevailing wage was $80,000 per year, and your employer only paid you $55,000 for the year, USCIS on any extension or change of employer application would likely find you to have fallen out of status, because it appears you were not employed for the whole year, or else that you were working only part-time and not full-time as specified.

If you believe your rights have been violated, and you are due back pay or compensation for health insurance etc., you may file a complaint with the US Wage and Hour Division, by filing the Form WH-4.  See, https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/wh-4.pdf.

Copyright 2020 ã Heidi J Meyers, all rights reserved.

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