Is Your Employer Benching You and Offering Fake Paystubs? Don’t Take Them! There Are Other (Lawful) Options

admin — Sat, 21 Aug 2010 17:00:19 +0000

We see the same cycle with some H-1B employers: (1) they bench an H-1B worker without pay; (2) the worker understandably wants to transfer to a new employer who pays him; and (3) the benching employer offers the worker fake paystubs, to “help” the worker transfer.

If YOU find yourself in this situation, do NOT accept the “deal.” Using fake paystubs is illegal, and can lead to serious problems.

You have other, lawful options to transfer H-1B employment to a new employer.

Namely, an underpaid H-1B worker who does not have valid paystubs to show he has maintained status (by being benched through no fault of his own) can often assert a legal argument to USCIS as an exception to replace the paystubs requirement.

The legal argument/exception is called “extraordinary circumstances.” If an H-1B worker has proof he tried to get work on behalf of his current (benching) H-1B employer, but he was benched without pay, the worker can ask USCIS to decide these were “extraordinary circumstances” that allow him, despite not having paystubs to show he has been maintaining his status, to move to the new H-1B employer.

You should consult with an immigration attorney– whether an attorney you retain yourself, or the new employer’s immigration attorney– BEFORE you accept fake paystubs or file for an H-1B with a new employer.

A competent immigration attorney can advise an H-1B worker on his or her options for changing employers without paystubs. Of course, no attorney can guarantee USCIS will find your situation to be an “extraordinary circumstance” and approve a new H-1B. That decision is in USCIS’s discretion and is not automatic. An attorney, however, can help you put your best (lawful) information forward, and put you in the best position possible for USCIS to view your situation favorably and hopefully approve your new H-1B employment.

Clients of blog author Vonda Vandaveer (an immigration attorney) have been successful in requesting USCIS find “extraordinary circumstances” exist in situations where H-1B employees have been benched and have no pay stubs.

The bottom line is that accepting a “deal” for fake paystubs with your employer who caused your problems in the first place is only going to make matters worse. Instead, you have the honest, lawful option of attempting to explain the “extraordinary circumstances” beyond your control to USCIS, and preserve your ability to continue to apply for a visa to live and work in the United States.

Attempting to change H-1B jobs is a big decision, and deserves careful consideration and assistance.

More Information

Here are links to posts with more information of use to benched H-1B workers:

For information about H-1B Rights & Immigration Rights Attorneys Michael F. Brown and Vonda K. Vandaveer, please visit here.

This blog is authored by Employee and H-1B Rights Attorney Michael Brown of the law firm of Peterson, Berk & Cross, and Immigration Attorney Vonda K. Vandaveer of the law firm V.K. Vandaveer, P.L.L.C.

DISCLAIMER: The information in this article is NOT legal advice, nor does it establish an attorney-client relationship between you and the attorneys or law firms above. Legal advice often varies among situations. If you want legal advice for your specific circumstances, you must consult with an attorney.

Save the Internet: Take Action http://alturl.com/6ym7m

admin — Fri, 20 Aug 2010 12:19:59 +0000

Save the Internet: Take Action http://alturl.com/6ym7m

Posted via email from Mike Brown’s posterous

ABA Journal Re: Work No More than 40 Hours a Week

admin — Fri, 13 Aug 2010 17:08:06 +0000

For the last 100 years, every productivity study in every industry has come to the same conclusion: After about 40 hours in a week, the quality of your work starts to degrade,” she writes. “You make mistakes. That’s why working 60 hours may not save you time or money: You’ll spend too much of that time fixing the mistakes you shouldn’t have made in the meantime. That’s why software companies that limit work to 35 hours a week need to employ fewer QA engineers: There isn’t as much mess to clean up.

via abajournal.com

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Pinoy teachers in US file class suit vs recruiters | philstar.com

admin — Sat, 07 Aug 2010 03:02:03 +0000

MANILA, Philippines — A group of Filipino teachers employed in the United States has filed a class suit against their foreign and local recruiters for alleged extortion, wire fraud and human trafficking.

According to Partido ng Manggagawa (PM), hundreds of Filipino migrant teachers who are working under H1-B visa and employed in different school districts in Louisiana filed the charges against Universal Placement International (UPI) and its Philippine-based partner, PARS International.

via philstar.com

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The Top 10 Things I Wish I Knew Before I Was 30 | Crazy Sexy Life

admin — Wed, 28 Jul 2010 02:32:34 +0000

9. The material world will not bring you true happiness. My generation was taught to think that happiness and success come from consumption. Materialism doesn’t bring you happiness. The media keeps feeding our need to buy more (appealing to our inner lizard of lack) and then we end up in our 50s or 60s with too much stuff and chained to The Man. We ask ourselves, “Is this all there is?” I am not saying that having abundance is a bad thing. What I am saying is that it is not the answer to happiness.

via crazysexylife.com

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Common Assumptions by H-1B Workers that Are Wrong

admin — Thu, 22 Jul 2010 15:47:08 +0000

: Image via Wikipedia

Many underpaid H-1B workers make assumptions about their situation that (while understandable) are incorrect.

Below are several assumptions we have heard from H-1B employees that are wrong. If you have been making the assumptions below, you may be stopping yourself from improving your situation.

Wrong Assumption #1: “I can’t do anything to improve my situation.”

This helplessness is exactly how an abusive H-1B employer wants you to feel. Your employer knows that if you believe you can’t do anything to improve your situation, then you won’t try. H-1B employers who violate the law don’t want you to try to do anything about it. To make you believe action is futile, they may spread misinformation or threats.

In truth, many H-1B workers (perhaps including you) do have options to improve their situation. Most of the H-1B workers this blog’s attorney authors have represented have significantly improved their situation by consulting with us and taking action. Some H-1B workers have had dramatic, night-and-day improvements in their situation, starting benched and broke, and winding up with payment of money owed and a lawful change to a better H-1B employer. We can’t guarantee great results for every H-1B worker. But we can say this: you won’t be one of those H-1B workers who get a great (or good) result if you believe you can’t and if you don’t take any action.

Wrong Assumption #2: “I can’t afford to pay an attorney, so I won’t contact one.”

It’s true that some (ok, many) attorneys out there are expensive. But a lot of attorneys are also affordable. In some cases, attorneys (including this blog’s authors) will work on a contingency basis where they do not require any payment of fees from the H-1B worker. On a contingency basis, no attorney fees are owed unless the case wins or settles, in which case a percentage of the money won is then paid as attorney fees (via a check from the employer).

Before hiring an attorney, ask the attorney, in advance, about whether out-of-pocket attorneys fees will be required, and what the terms of attorneys’ fees are.

But if you assume you can’t afford an attorney, and you don’t even check what the options are based on that incorrect assumption, then you may be depriving yourself of a chance for legal representation that you could in fact afford.

Wrong Assumption #3: “I can handle this myself.”

Sometimes this assumption is true, but often it is not. The attorney authors sometimes encounter H-1B workers who are on the fence when they contact us. They have already tried many times to get their employer to pay their underpaid wages, with no progress. Yet while these workers know they are not getting anywhere with their underpaying H-1B employer and think they may need an attorney, they are still not sure, holding out hope they can still work things out on their own.

They may think to themselves:

“If I talk to the employer just a few more times about my unpaid wages– maybe threaten them that I’ll get an attorney and take legal action, or maybe try to cut a deal on my own– they will see the light.”

Chances are, if you have already made efforts on your own and you are not making progress, then you do need help from someone else: from the Department of Labor (DOL), from an attorney, and/or from a new H-1B employer who is willing to offer you a transfer and new job on fair terms.

If your own efforts are getting you nowhere, chances are you need to explore potential help from others.

Wrong Assumption #4: “I need to sue my employer to get my unpaid wages, and I don’t want to get caught up in litigation for years, so I won’t bother.”

Yes, sometimes it takes a lawsuit and years of litigation before an H-1B employer is held responsible and finally pays an H-1B worker what is owed.

More commonly, however, a lawsuit is not required because many situations are resolved by settlements before litigation is necessary. Many H-1B employers and their attorneys recognize the potential legal liability and are willing to discuss settlement before the employers are actually sued. If you are represented by attorneys with litigation experience, the employer will feel increased pressure about its unlawful failure to pay you and will know you are prepared to litigate your matter to completion if the matter does not settle. It is often in the employer’s best interest to settle early when they are confronted with solid proof, from you and/or your attorney, that they violated the law.

Wrong Assumption #5: ”If I sue the employer and lose, I would have to pay the employer’s attorney fees. I can’t afford to take that chance.”

America’s justice system is not a “loser pays” justice system like some other countries have. While it is true that for some types of claims a loser must pay the winner’s attorneys fees, that is not the case for most H-1B workers’ legal claims. For example, unpaid wage statutes often require that an employer (if it loses) pay the employee-winner’s attorneys fees, but not vice versa.

Bottom line is that you should not assume there would be big liabilities (or any liabilities) to you if you lost a legal case. You should talk to a competent attorney to evaluate whether there would be any significant risk to you if you lost. For many employees’ legal claims, the answer is no, there is no significant risk.

Wrong Assumption #6: “I should do what this person on the message board says to do– he seems to know what he’s talking about.”

Message board advice is often authored by intelligent people, but most of those people can only offer a very limited perspective: their own situation and/or limited second-hand information (often unsubstantiated) that they’ve heard from others.

The best sources of advice are persons who have repeat, comprehensive experience with H-1B employment disputes, such as H-1B employee rights attorneys and DOL personnel. These persons are in a position to see many H-1B disputes, analyze laws and trends, and give well-informed feedback. Someone on a message board may have had success in his or her own matter, or may have intelligent input on an issue, but the reality is that most message board participants (no matter how well-intentioned or smart) do not have the range of expertise and experience necessary to give informed legal advice that is appropriate for your specific H-1B employment matter.

Wrong Assumption #7: “I should file a DOL complaint or other legal complaint on my own– that will make the employer pay up.”

Sometimes filing a complaint yourself is the best option for an H-1B worker and the most likely route to successfully recovering wages. In many instances, however, other options besides a DOL complaint exist, such as a pre-litigation settlement, filing a court complaint, etc. You can best help yourself by becoming educated about the pros and cons of those options before you move forward with any particular action (including a DOL complaint).

Here is a post about things to consider before filing a DOL complaint.

More Information

Here are links to posts with more information of use to H-1B workers:

For information about H-1B Rights & Immigration Rights Attorneys Michael F. Brown and Vonda K. Vandaveer, please visit here.

This blog is authored by Employee and H-1B Rights Attorney Michael Brown of the law firm of Peterson, Berk & Cross, and Immigration Attorney Vonda K. Vandaveer of the law firm V.K. Vandaveer, P.L.L.C.

Judge Posner Admits He Didn’t Read Boilerplate for Home Equity Loan – News – ABA Journal

admin — Tue, 29 Jun 2010 18:42:37 +0000

Judge Richard Posner of the Chicago-based 7th U.S. Circuit Court of Appeals does a lot of reading—but he apparently hates boilerplate as much as the next person.

Appearing at a recent American Constitution Society conference, Posner recalled his encounter with hundreds of pages of documentation for his home equity loan, Above the Law reports. Posner got a laugh when he said he didn’t read it; he just signed it.

via abajournal.com

The most interesting issue in this article is not it’s focal one, i.e. that a judge ignored the fine print when getting a loan as a consumer.

Most interesting, to me, is that this is a striking example of REAL consumer behavior (e.g. people generally don’t read the fine print of important documents before signing them), as compared to legal fictions (e.g. people are presumed to have read, understood and willingly signed the contract at issue). To me, the scariest aspect of this scenario is not that a judge didn’t read the fine print. Far scarier is that our legal and political systems are based on the legal fictions, rather than the realities.

The first reality: most people don’t understand most of the complex documents they sign. Another reality: many companies take advantage of people who don’t read or understand their contracts. And more companies will do this, the way the trend is headed. That is, if existing economic and legal incentives remain intact, and continue to reward companies who lay traps via fine print.

Scariest of all, note the central element that allows all such contractual transactions to unfold: trust. When people sign contracts they don’t read and/or understand, they do so with the belief that the company that drafted the lengthy fine print can be trusted. That is, our internal monologue that says, “I don’t know what all that stuff in this contract means, but I assume the other party does not intend to take advantage of me.” Judge Posner’s scenario exemplifies the huge role that trust plays in the consumer’s mind– even a very sophisticated consumer who is exceptionally well-versed in law and economics. If all THAT consumer has to rely on is trust– given the lack of law and/or enforcement with teeth for most such scenarios nowadays– yikes.

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Daniel Kahneman’s Talk About The Science of Happiness, and Money’s Effect (and Lack Thereof)

admin — Sat, 05 Jun 2010 12:14:39 +0000

via ted.com

This is a very interesting talk about the nature of happiness by Daniel Kahneman, behavioral economist and Nobel Prize winner.

Some key points:

- People have two selves: (1) an Experiencing Self, i.e. YOU, as you are reading this, feeling the feelings you feel in real time; and (2) a Remembering Self, i.e. the self we are when we look backward or forward, and think about how satisfied we are about something we did or plan to do.

- Spending time with people we like is the biggest factor that causes happiness in our experiencing self.

- Money earned above $60,000 annually does not increase happiness, according to scientific studies.

- However, poverty definitely causes unhappiness, with a person becoming progressively unhappier the further he or she falls below the $60,000 annual income mark.

An example that comes to my mind that sums this up: BP’s CEO’s Remembering Self probably feels very satisfied (understandably so) with his life accomplishments and earnings. But his Experiencing Self, not feeling much support from other people right now, is probably not happy, notwithstanding his income being substantially higher than $60k.

Posted via web from Mike Brown’s posterous

7 of My Favorite Timeless Tips from the Last 2500 Years

admin — Tue, 25 May 2010 21:48:33 +0000

These 7 tips describe very practical approaches and attitudes for life challenges. The quoted tip below reminds me of the Supreme Court, and all the confirmation-process talky-talk where Justices are described with labels like “activists” (bad label) or “umpires” (good label). Behind all the labels and analogies, as well as behind the intellectual rationalizations of complex legal decisions, there are concrete benchmarks– actions by the Justices– that are much more predictable and telling than what is said about and by the Justices. Is a Justice an “umpire,” as described, or do the Justice’s actions on occasion reflect idealism and contradict the umpire ideal? Not to pick on Justices. This is something we all struggle with, to make sure our actions constantly back up our stated ideals.

1. Andrew Carnegie on paying attention to the more important things.

“As I grow older, I pay less attention to what men say. I just watch what they do.”

I have to agree, I pay less and less attention to what people say. Because in the end, what someone does is the most important thing. Talking is easy, but walking your talk is harder. And walking it consistently even though you fall, slip back into old habits and make mistakes is a huge part of success.

via positivityblog.com

Posted via web from Mike Brown’s posterous

7 of My Favorite Timeless Tips from the Last 2500 Years

admin — Tue, 25 May 2010 21:48:31 +0000

1. Andrew Carnegie on paying attention to the more important things.

“As I grow older, I pay less attention to what men say. I just watch what they do.”

I have to agree, I pay less and less attention to what people say. Because in the end, what someone does is the most important thing. Talking is easy, but walking your talk is harder. And walking it consistently even though you fall, slip back into old habits and make mistakes is a huge part of success.

via positivityblog.com

Posted via web from Mike Brown’s posterous