If you are an H-1B worker and have been reading our blog regularly, by now you probably know that your employer must pay you a required wage even if benched, you must do the work when available for which you were hired, and you cannot move from one location to the next without the employer notifying DOL or in some cases filing an amended H-1B application.
You also know an employer’s failure to adhere to these H-1B program regulations is a legal violation. Indeed, the news abounds with stories of employers scamming the H-1B program and exploiting H-1B employees.
Not all employers intentionally violate these rules, however. Some employers, particularly smaller ones who have little experience with the H-1B program, may not fully understand the intricacies of their duties and obligations as an employer. Whether an employer’s violations are intentional or not, however, you are the whose status is jeopardized; your employer’s violation can put you at risk of violating the rules, with the consequence of being forced to leave the United States and even run the risk of not being able to return.
Protect Yourself; Know the Rules
As an H-1B worker, it’s your status at risk, so you need to take responsibility for your status by informing yourself of the H-1B program rules and what actions jeopardize your ability to live and work in the United States. Don’t rely on your employer. They often are too busy running their business to appreciate the risks to you of an H-1B program violation.
Even good news, such as a promotion, can inadvertently put you in violation of your status. For example, if you are a market research analyst, and you are promoted to marketing manager heading up a department with dozens of employees and taking on entirely new duties, you are no longer doing the work for which your original H-1B documentation was approved. Your employer would need to file a new LCA with the Department of Labor and an amended H-1B petition with USCIS. If your employer does not follow the requirements, you are the one whose life will be upended by having to leave your job and the United States.
If you are being promoted into a new position, moved to a new location, or you experience any other change to your job, ask your employer whether an amended LCA or an amended H-1B petition is to be filed. If your employer refuses to take any action to help you ensure your status, then you should talk to a competent attorney to protect yourself.
For more information about the legal services we offer H-1B workers, see our page here.