H-1B workers who are benched or underpaid not only feel financially exploited, they may also feel emotionally exploited, especially if they have an employer whose main motivation tactic is to threaten to revoke your visa.

Understandably, H-1B workers who feel exploited and unappreciated will want to quit their job, and may do so in the heat of a particularly bad fight with their employer. Stop! Before you take such drastic action, take a deep breath and contemplate the consequences.

If you are on an H-1B work visa and you quit your job, even though your employer may have committed violations, you may be the one who will suffer the worst consequences of your job ending. In this article, we explain key problems you could create for yourself if you quit your H-1B job.

No Grace Period

Contrary to rumors, H-1B workers do not have a grace period if they quit their jobs. Immigration forums are loaded with bad information about so-called grace periods. Some insist 10 days, others will even say a month, or longer. All are wrong. No formal grace period exists.  If you quit your H-1B job and have no alternative H-1B employer or other means to obtain lawful status, then you would be required to leave the United States.

Failure to Maintain Status

H-1B workers who quit an H-1B job with no other status in hand are considered to be no longer maintaining their status. What this means is if you quit an H-1B job abruptly, then you are not eligible to change your status (e.g. to F-1 student) or to extend your stay (i.e. transfer to another H-1B employer) while remaining in the United States. Instead, if you apply for a change or extension, you must leave the United States and upon approval, apply for a new visa to re-enter the United States. In practice, USCIS may overlook a very short failure to maintain status, such as a few days or a week or so, before you file an application for change of status or extension of stay, but that forgiveness is entirely up to USCIS’ discretion. Legally, you have no right to stay in the United States after you have quit your job, regardless of the reason, and USCIS is not obligated to approve your new application for a new H-1B or change of status.

Extraordinary Circumstances

If you quit your H-1B job without first arranging for a new status,  then you are potentially giving up your ability to take advantage of a useful provision of the law to stay in the United States. Staying with your job (even if you are eventually fired), or waiting until you have a plan for obtaining a lawful status when you quit, may be the better strategies given the applicable law.

Specifically, there is a provision in the law that forgives H-1B workers who lose their status because they were fired due to “extraordinary circumstances” beyond their control. Also, the “extraordinary circumstances” law can help a benched H-1B worker apply for a new H-1B employer despite not having paystubs that are usually needed for the transfer process.  We have discussed this helpful “extraordinary circumstances” regulation in other posts. The term “extraordinary circumstances” is not defined, but USCIS has indicated it may consider “extraordinary circumstances” to include H-1B holders have not maintained their status due to their employer’s fault, such as by being benched or by having been fired in retaliation for complaining about being benched or underpaid.

Please know that citing this law and telling USCIS you have “extraordinary circumstances” based on benching or being fired, does not guarantee you will be able to stay in the United States. USCIS has absolute discretion to determine whether there are “extraordinary circumstances”, and to approve or deny your request.  We, however, have had H-1B workers who have been benched or fired successfully use this provision to change their status or transfer to another employer without having to leave the United States.

The key to using this provision is your failure to maintain your status must be your employer’s fault. If you quit your job without waiting to first obtain another lawful status, then it would not be your employer’s action that caused this lack of status. Rather, you would be taking the action that is putting you out of status, even if you are quitting because of your employer’s unlawful conduct. By quitting your job in this way, you are making your situation much more complicated, and you may be compromising your ability to take advantage of the “extraordinary circumstances” provision of the law.

Plan Ahead; Save Yourself

As an H-1B holder, you have fewer options for quitting bad employers than US citizens or green card holders if you want to remain in the United States. You need to plan ahead and act smart. As frustrating and difficult as your current H-1B employment situation may be, before you act, and potentially make your situation worse, you should talk to a competent attorney and learn about your rights and options.

For more information about the legal services we offer H-1B workers, see our page here.

As part of the settlement agreement, PG County schools are barred from filing H-1B and other employment-based petitions for two years, including extensions of existing H-1B workers. Once their H-1B time with PGCPS expires, these teachers will be out of a job and have to leave the United States unless they find another employer or other visa status.

It’s true. It’s not fair. The reason lies in the purpose of the visa regulations. H-1B and associated employment-based immigrant visa regulations, which include those of the Department of Labor and USCIS, were not created for the benefit of the foreign workers. Rather, the regulations were created for U.S. employers. These regulations enable U.S. employers to fill jobs that (per the theory of legislators) would otherwise go unfilled because insufficient numbers of qualified American workers (or other authorized workers) exist.

To prevent employers from using these regulations to undercut American workers, the regulations impose numerous obligations on employers. For H-1Bs, for example, the regulations set minimum wage requirements (known as the prevailing wage) for each job based on job type/skills and location, and prohibiting benching (the worker must be paid the required wage even if the employer has no project or work to be done).  By imposing these obligations, the employer is discouraged from seeking foreign workers who it might be able to pay less for doing the job. These obligations also protect the foreign worker from exploitation, but is not their only purpose.

The process of obtaining an H-1B and associated green card has become sufficiently complicated, expensive and lengthy that it also serves as a de facto discouragement against hiring foreign workers.

With this in mind, the regulations impose penalties designed to punish the employer, such as fines and being barred from participating in the visa programs. They do not focus on remedies for the foreign worker. In the case of the PG County teachers, they are to be reimbursed the money they paid, but this order is less about refunding the teachers their wrongfully paid sums, and more about preventing the employer from benefiting from its violations, which it would if it were allowed to retain the money paid by the teachers.

As to the victimized teachers, the system is for the most part not concerned with their re-employment once their H-1B with the school expires. The H-1B visa is market driven, so the system lets the market decide their fate. Once their H-1B with PG County expires, the teachers can stay in the United States if they can find another employer or obtain some other visa status (e.g. student visa, marriage visa, etc.). From the system’s perspective, if the teacher does not find another H-1B employer, for example, then that must mean sufficient numbers of American workers exist, so a foreign worker is not needed to fill the job and must return home.

To prevent this unfair outcome, a change in the focus of immigration policy must happen. When the policy changes, the regulations will follow. If U.S. immigration policy concerns you, you can advocate for change by contacting Congress or volunteering to help immigration advocacy organizations, such as the American Immigration Council.

If your employer required you to pay for your H-1B fees or you have been benched or underpaid, you may have remedies available and should seek advice from a competent attorney.

For more information about legal services we provide to H-1B employees, please see our page here.

Image by ElectronicFrontierFoundation via Flickr

H-1B employees who have been benched without pay or underpaid often are reluctant to complain against their employers because they fear they will be fired and lose their immigration status.

This fear is understandable, but exaggerated. This article will explain why complaining can actually help preserve your status in the United States.

The Relationship Between Maintaining Status and Changing or Extending Status

As H-1B employees know, to extend their H-1B status or to change to another status such as a student visa while remaining in the United States, they must prove they have been maintaining their H-1B status. For H-1B employees, the proof they have maintained status is normally pay stubs. If an H-1B employee has been fired or benched, he has no pay stubs to submit to prove he has been maintaining his status. In addition, the employer may have notified USCIS it wants to revoke the H-1B approved petition.

If the H-1B employee cannot prove he has been maintaining his status, he must leave the United States and await USCIS approval of the new H-1B employer, student visa status or other visa status, then apply to re-enter the United States. Because leaving the United States can create complications for visa holders and comes with the risk of being denied re-entry, many H-1B employees prefer to change or extend their status while remaining in the United States.

Can You Save Your Status If Fired For Complaining?

H-1B employees who are afraid they will jeopardize their status if they complain, will be relieved to know that even if fired, they may not have to leave the United States to change employers or to another visa status. The laws provide protections from retaliation by employers when H-1B employees complain about their legal rights. In particular, Department of Labor regulations at 20 CFR 655.801 and a USCIS policy memo support arguments that termination in retaliation for complaining about Labor Condition Application (LCA) violations, such as unpaid wages, may be deemed an extraordinary circumstance enabling a change or extension of status.

USCIS provides this protection against retaliatory termination because it wants to encourage H-1B employees to report their employers’ violations and to cooperate in investigations against employer violators. (This  type of protection is know as “whistleblower” protection. In many cases, the law protects people who inform the government about others who violate the law.)

Depending on the situation, USCIS may approve a change or extension of status so that the H-1B employee may remain in the United States even if terminated for complaining about employer violations. Specifically, the USCIS policy memo to its staff reads:

USCIS adjudicators are instructed that, if credible documentary evidence is provided in support of an H-1B petition that the alien beneficiary faced retaliatory action from his or her employer based on a report regarding a violation of INA § 212(n)(2)(C)(iv), then USCIS adjudicators may consider any related loss of H-1B status by the alien as an “extraordinary circumstance” as defined by 8 CFR 214.1(c)(4). This process may allow the alien additional time to acquire new H-1B employment and remain eligible to apply for a change of status or extension of stay notwithstanding the termination of employment or other retaliatory action by his or her employer.

The USCIS policy memo instructs its staff to consider whether an H-1B employee was terminated in retaliation for complaining about his employer’s violations of H-1B regulations or for cooperating in an investigation against an H-1B employer accused of violating the law. In determining whether an H-1B employee would be protected under this provision and be permitted to change or extend his status while remaining in the United States, USCIS looks at several issues, including whether the H-1B made a complaint against the employer.

So, contrary to many H-1B employee’s concerns, complaining about an employer who violates the law may actually help you maintain your immigration status, rather than cause you to lose it. Please note that this protection is not guaranteed, however. USCIS’ decision to accept or reject this argument is in its sole discretion. Even if you think you qualify for this protection, USCIS could disagree and deny  your change or extension of status.

While this protection is not guaranteed, the attorney-authors have successfully obtained extensions and changes of status for our clients who have complained against employer violations and whose jobs were terminated. Whether you are a good candidate for referencing this regulation against retaliatory termination depends on the circumstances of your case. A key factor in being able to take advantage of this protection under the law is the complaint. The complaint against your employer must be done in the proper manner. If not, you increase the chance USCIS will deny you protection.

Before Acting, Talk to an Attorney

Because every person’s situation is unique, if you have not maintained status, even if you believe it was not your fault, you should immediately seek competent legal advice before taking any action to determine all the legal options, and the best strategy, for your particular situation.

For more information about legal services we provide to H-1B employees, please see our page here.

Other articles on changing or extending your status:

FAQ: I’ve Been Benched and Have No Pay Stubs. Can I Change My H-1B Visa?

Will I Be Deported If I Complain Against My H-1B Employer?

Complaining About H-1B Employer Benching May Give You the Tool to Salvage Your Status

Image via Wikipedia

We hear from many H-1B holders who have been benched or underpaid, but who think it’s best if they first find a new job, return to school, or obtain some other status to enable them to stay in the United States before they complain about their H-1B employer who underpaid them or violated the law.

The reality is, unless you have valid pay stubs to prove you have been maintaining your H-1B status, it can be very difficult to move to a new H-1B job, to get a student visa, or to otherwise change or extend status.  Indeed, unless an H-1B worker has proof that he or she has been maintaining H-1B status, the worker cannot lawfully stay in the United States and change or extend status. Instead, the H-1B worker must leave the United States, await a new approval, and then apply to re-enter.

So, what can you do if you are an H-1B worker who wants to remain in the United States but leave the H-1B employer who violated the law?

One options is registering a complaint. Complaining about an employer’s unlawful activity in a legally proper way may give you the very tool you need to try to salvage your life in the United States without leaving.

Rules of Changing or Extending Status

As H-1B holders know, they are typically required to submit pay stubs as evidence to show they have been working and thus maintaining their status. Benched employees without pay stubs cannot show they have been maintaining their status, which usually means they cannot legally change or extend their status while staying in the United States.  Instead, if such benched workers want to work for another H-1B employer, for example, then they normally must leave the United States and await the approval of a new H-1B petition before returning and working.

How Complaining About Your Employer’s Unlawful Activity Can Help Salvage your Status

If you complain about your H-1B employer’s unlawful conduct (via a proper complaint to the employer or a legal complaint), however, you may be able to take advantage of a special regulation that permits a change or extension of status despite a failure to maintain status if that failure was not the H-1B employee’s fault.

This regulation, referred to here as the “extraordinary circumstances” regulation, gives USCIS the discretion to approve extensions [8 CFR 214.1(c)(4)] and changes of status [8 CFR 248.1(b)] without requiring the employee to leave the United States, if the H-1B worker can prove he has not been maintaining his status due to “extraordinary circumstances beyond the control of the [worker].”

What constitutes an “extraordinary circumstance” is not defined by the laws above. It is intentionally left open-ended to take into account the numerous scenarios that could prevent someone from maintaining their status. A serious illness that would prevent an H-1B employee from showing up to work, for example, is one type of circumstance contemplated by the regulation.

When USCIS reviews requests for forgiveness due to “extraordinary circumstances,” some of the factors USCIS will consider include (1) the reason the H-1B employee did not maintain status, (2) for how long the employee was not maintaining status, and (3) what the employee did about it (e.g. for a benched employee, did you email your employer in a professional manner to object that you were not being paid, or did you say nothing?).

For benched H-1B workers, this regulation has been successfully used by those who could establish their employers failed to pay them legally-required wages, and the worker complained about it.  (Please note that the type and content of a complaint you make is important, and it can be of great help to have an attorney review a draft email complaining to the employer, or a draft Department of Labor complaint, before you submit the complaint).

If you were benched without pay and made a proper complaint about it, USCIS may find that situation to qualify as an “extraordinary circumstance” and find you are permitted to maintain status and lawfully move on to a new employer or situation.

The attorney-authors’ clients who were benched and who had properly complained about it have successfully obtained a change or extension of satus per the extraordinary circumstances regulation.  We must note, however, there is no guarantee USCIS will apply this regulation to your case.  The “extraordinary circumstance” regulation gives USCIS the option, but not a required mandate, to extend or change status based on your H-1B employer’s legal violations and your complaint.

If you don’t have this argument in your toolbox, however, changing or extending your status without pay stubs as proof you were maintaining your status will be even more difficult.

Whether you are a good candidate for seeking relief under this regulation for unpaid wages depends on the circumstances of your case. Because every person’s situation is unique, if you have not maintained status, even if you believe it was not your fault, you should promptly seek competent legal advice before taking any action to determine all the legal options, and the best strategy, for your particular situation.

For more information on changing or extending your status, please see our articles FAQ: I’ve Been Benched and Have No Pay Stubs. Can I Change My H-1B Visa? and Is Your Employer Benching You and Offering Fake Paystubs? Don’t Take Them! There Are Other (Lawful) Options.

For more information about the legal services we provide to benched or underpaid H-1B workers, please visit our blog page here.

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:

• FAQ: I’ve Been Benched and Have No Pay Stubs. Can I Change My H-1B Visa?
• Keeping Your Nose Clean: Refuse Your H-1B Employer’s Requests to Break the Law
• My H-1B Employer Is Asking Me to Take a Vacation… Last Year
• Employee Tip: If You’re an H-1B Worker Being Underpaid Wages, Consider These Things
• Benched or Underpaid H-1B Wages? The Importance of Acting Promptly

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.

Question 1: I’m an H-1B employee and I have benched without pay, but I have found a new employer. I have no pay stubs. Can I “transfer” without leaving the U.S.?

Question 2: I’m an H-1B employee and I was benched without pay, but when I complained, my employer fired me. I have found a new employer, but have no pay stubs. Can I “transfer” without leaving the U.S.?

Answer: The answer to both questions is maybe.

In this article, we explain a regulation that may enable you to change or extend your visa without leaving the United States, when the employer’s failure to pay you caused you to have not maintained your status.

H-1B “Transfers” and Maintenance of Status

For an H-1B worker to change H-1B employers or extend status (a.k.a. “transfer” as it is sometimes misnamed), the H-1B worker must have maintained status. In the context of an H-1B visa, maintaining status includes maintaining the employer-employee relationship with the H-1B employer sponsor.

If the H-1B employee has not maintained status, he cannot seek the extension of stay (e.g. change to another H-1B employer) or change of status (e.g. change from H-1B to F-1) from within the U.S.  Rather, the worker would have to leave the U.S. and if the application is approved, then re-enter on a valid visa.  (Whether a new visa needs to be obtained depends on the circumstances).

This requirement to maintain status is what underlies the USCIS requirement for pay stubs and other financial proof of having been paid. Those who have been benched or fired don’t have the required pay stubs.

There is a useful regulation, however, that may help benched or fired H-1B employees change their employers or change their status without leaving the United States.

“Extraordinary Circumstances” Regulation

Regulations give USCIS the discretion to approve extensions [8 CFR 214.1(c)(4)] and changes of status [8 CFR 248.1(b)] without requiring the employee to leave the United States, assuming the H-1B worker can prove he has been out of status due to “extraordinary circumstances beyond the control of the [worker].”

What constitutes an “extraordinary circumstance” is not defined by the laws above. An example that comes to mind, though, is a serious illness that keeps an H-1B worker bed-ridden for a long period of time and, through no fault of the worker’s own, physically makes the worker unable to work (and receive paychecks).  This is obviously an example of a illness-driven situation that causes an H-1B worker not to work.  But what about when an employer’s action is the cause?

If an H-1B employer benches an H-1B worker without pay or is terminated in retaliation for complaining about unpaid wages, USCIS may deem such situations to qualify as an “extraordinary circumstance,” but whether USCIS decides to do this depends on the circumstances.

When USCIS reviews requests for forgiveness due to “extraordinary circumstances,” some of the factors USCIS will consider include (1) the reason the H-1B employee did not maintain status, (2) for how long the employee was not maintaining status, and (3) what the employee did about it (e.g. for a benched employee, did you email your employer in a professional manner to object that you were not being paid, or did you say nothing?).

If you were benched without pay and paystubs or experienced a retaliatory termination, USCIS may find that situation to qualify as an “extraordinary circumstance,” but we must emphasize that there is no guarantee USCIS will apply this regulation to your case.  The “extraordinary circumstance” regulation gives USCIS the option, but not a required mandate, to forgive status problems. USCIS can decide your situation does not qualify and can deny the extension or change of status.

Department of Labor regulations at 20 CFR 655.801 and a USCIS policy memo support arguments that termination in retaliation for complaining about Labor Condition Application (LCA) violations, such as unpaid wages, may be deemed an extraordinary circumstance enabling a change or extension of status.

Whether you are a good candidate for seeking relief under this regulation for unpaid wages or retaliatory termination depends on the circumstances of your case. Because every person’s situation is unique, if you have not maintained status, even if you believe it was not your fault, you should immediately seek competent legal advice before taking any action to determine all the legal options, and the best strategy, for your particular situation.

H-1B workers who do not seek legal advice often make mistakes, based on the (understandable) fact the worker is not aware of the legal standards at issue, and is more focused on the frustration and desperation of not being paid and trying to deal with an employer who is not following the rules.  However, an H-1B worker who acts out of frustration or desperation — for example, a worker who makes angry outbursts to the employer, or who accepts an employer’s illegal offer to create phony paystubs– is greatly increasing the risk of problems.

In our practice as attorneys, we have been able to help many benched H-1B workers receive pay from their employers, and also to lawfully move on to a new H-1B employer through the  “extraordinary circumstances” law.  But the workers we can help are those who want help to comply with the law.  Those who try a do-it-yourself fix, or try to enlist the help of the employer (the same employer who caused the problems in the first place), often wind up with the same results (no pay, no ability to move to a new job), or worse.

More Information

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

• Keeping Your Nose Clean: Refuse Your H-1B Employer’s Requests to Break the Law
• My H-1B Employer Is Asking Me to Take a Vacation… Last Year
• Employee Tip: If You’re an H-1B Worker Being Underpaid Wages, Consider These Things
• Benched or Underpaid H-1B Wages? The Importance of Acting Promptly

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.