Starting a new employer relationship can be risky. You never know if the employer’s representatives are good people who will follow the rules and treat you right, or if they are just talking a good game and are actually out to exploit you and your immigration status.
There is no fool proof way to predict how any relationship will turn out, but if you know what to look for, you can spot the clues early on and walk away, saving yourself from the emotional and financial trauma of getting into a bad employment relationship.
In this article, we identify some of those clues. Keep in mind each of these clues is not necessarily a deal breaker. Innocent explanations for any of these red flags may also exist. Encountering one or more of these, however, should put you on alert and compel you to pursue more information to ease any concerns, or even cause you to think twice about accepting the job.
Clue 1: Employer is Vague About Job Duties
Say you responded to an ad for a software developer, and have been discussing employment terms with the prospective employer’s owner. He gives only a vague description of what your tasks will be. Sometimes a job is new or evolving so all the details are not known, but an employer’s inability to give concrete information about the work should set off an alarm bell. An employer who does not already have a job on hand for you, whether as a third-party project or for the company itself, can only talk in vague terms about your day-to-day tasks. An employer with an existing job will have a very detailed idea of the tasks and expectations.
Press the employer for details about the job. Ask what the desired outcome is. Is there a new project or program being created? Will you be upgrading an existing program?
What about percentages devoted to various tasks? How much time will be spent programming? How much time designing applications? How much time attending meetings? How much time drafting proposals?
Do not be afraid to ask questions. A good employer should have answers, and if their representatives don’t, they should explain why not.
If an employer’s owner tells you directly he has no specific job, that you will be expected to find a project yourself on behalf of the company, and that you will not be paid until you have a project, be grateful he told you up front. Reject the offer. That is a classic benching situation, and is not permitted under H-1B regulations.
If you accept such an offer, you, too, could face problems beyond not being paid regularly. If you know the employer will be benching you, but you still pursue H-1B visa status with that employer, your complicity would complicate your ability to pursue claims against your employer for unpaid wages under H-1B regulations. Worse, you expose yourself to a charge of being a co-conspirator with your employer for visa fraud.
An employment situation in which you are being paid while you are benched between projects, may be in compliance with the regulations, however. Keep asking questions until you have a clear idea of whether your employer’s job offer is legitimate and in compliance with the H-1B program regulations.
Clue 2: Employer Cannot Commit to a Work Location
Say you ask the prospective employer’s owner what your office and work conditions will be like, but he brushes away the question without giving you any insight. Employers who are operating as body shops do not know where the next assignment will be, so they cannot identify a building, city, or even a state where an employee will work. An employer with a legitimate job for an off-site project may not know specifics of the location, but their representatives will tell you what they do and do not know, rather than be evasive.
If your prospective employer is not answering your question to your satisfaction, ask again. Where is the office located? What kind is the neighborhood like? Is it downtown in a city or in an office park? Is it accessible by public transportation or is a car more practical? Will you have your own office, or will you work in an open room?
If your employer cannot answer these questions, try to find out why. If you are not satisfied with the response, consider it a clue the employer may not have an existing job or project in place.
Clue 3: Employer Requires Payment of H-1B Application Fees
You and the employer have agreed to all the key terms of your employment, such as your job duties, salary and work location, so now it’s time to apply for the visa. You receive an email from your employer with the details about the application process, and are surprised by a request asking you to pay the H-1B fees.
You have done your research and know that DOL requires the employer to pay H-1B application fees, so you are on alert. Sometimes employers, especially those who are new to H-1B employment, simply do not know they are required to pay the fees, so the request may not show bad intentions.
In our experience, though, we have found that unscrupulous employers also commonly demand the H-1B employee pay the fees or the job offer disappears.
To help determine which one your prospective employer might be, tell him DOL requires the employer to pay the fees. You can point him to DOL’s website here http://www.dol.gov/wecanhelp/h1bworkers.htm, where it expressly says the employer cannot require the employee to pay H-1B petition fees.
If your prospective employer insists that to get the job you must pay the fees despite the DOL’s prohibition, that serves as an indicator the employer will make other unlawful or exploitative demands down the road.
By being alert to these and other clues about your employer and learning about your rights as an H-1B employee, you will increase the chance of avoiding an unscrupulous employer and finding a healthy, productive and lucrative employment relationship.
For more information about legal services we provide to H-1B employees, please see our page here.