Clues, bei Syke (Photo credit: Wikipedia)

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.

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Due to a new requirement by at least one U.S. consulate in India, H-1B employees now face a new risk of a permanent bar from the United States for unlawful actions by their H-1B employers.

The U.S. Consulate in Hyderabad, as shown in a document obtained by AILA, is now requiring H-1B employees who will be working at third-party client sites in the United States to sign an attestation about their work conditions, which, if erroneous, could expose them to a life-time ban from the United States.

The attestation (reproduced below) states a series of conditions about the employer-employee relationship and the work at the third-party site, then at the end says:

I understand that any false, knowingly incorrect, or misleading statements made to a consular or immigration official may result in a permanent ineligibility for a visa to the United States of America.

What this statement means is if you intentionally provide false information about your work conditions, or even guess at what the information might be, and that guess turns out to be wrong, you could face a permanent bar to entry to the United States.

Attestation Based on USCIS Crackdown and Guidance for H-1B Employer-Employee Relationship

This attestation is byproduct of a USCIS policy memo that details restrictions on third-party client work for H-1B visa holders. USCIS realized H-1B employers were skirting the regulations or committing outright fraud by luring foreign workers to the United States with promises of well-paying jobs, only to make them go find their own contract work at third-party sites, leaving them unpaid for periods of time (often weeks or months) while they sought work: a practice known as “benching.”  Such H-1B employers provide no legitimate work themselves. This practice, while unlawful for H-1B employees, is common in the IT field where contractors are hired for a specific project.

To cut down on this type of fraud, in 2010 USCIS issued a policy memo defining what it considered to be the required employer-employee relationship for an H-1B visa and how that relationship had to be maintained if an employee was working on third-party projects and off site at a client location. USCIS looks at such factors as who controls and supervises the employee, who pays the employee, what is the nature of the work the employee is doing, etc. At the same time, USCIS also increased its surprise inspections of H-1B employer work sites, verifying the proper H-1B employer-employee relationship exists.

The document the U.S. Consulate is giving to H-1B visa applicants tracks the same factors outlined in the USCIS guidance.

US CONSULATE GENERAL, HYDERABAD, INDIA

DATE

I, _____________ born on _____________ in _____________ state that:

1. I have read and understand the Wilberforce pamphlet.
2. The petitioner is _____________
3. The petitioner supervisor is _____________ with a principle location of _____________
4. The number of petitioner employees at the work site is_____________
5. My primary work location is _____________
6. The end-client for my work is _____________
7. The end-client supervisor is _____________
8. The _____________ supervisor is located ‘offsite’ and is not regularly employed for the predominant part of the workday/work week/work month at the site where I work.
9. Contact with the _____________ supervisor is limited to weekly visits to the _____________ office and occasional Petitioner supervisor visits to end-client work sites.
10. The principle day-to-day management is conducted by the client, _____________
11. The client, _____________, provides the tools and equipment (including any software and operating environment) needed for the job.
12. The petitioner, _____________, makes primary hiring firing and promotional decisions.
13. Petitioner supervisor sits down at end-client location and reviews code, does not rely on on-site Petitioner supervisor for evaluation purposes.
14. The petitioner, _____________ claims Beneficiary for tax purposes
15. The petitioner, _____________ provides primary benefits, such as life/medial insurance etc.
16. The petitioner _____________ does not provide any primary/key proprietary tools or applications for the work.
17. I produce a product related to Petitioner’s line of business.
18. The client, _____________ makes the main development and product decisions for the end product I produce.

I understand that any false, knowingly incorrect, or misleading statements made to a consular or immigration official may result in a permanent ineligibility for a visa to the United States of America.

Are You At Risk of Being Banned Permanently?

The attestation at the bottom focuses on the applicant’s knowledge of the work conditions and any misleading information or outright lie. What this means is if the H-1B applicant believes all the required factors exist – that he will have a weekly visit from his employer, that he is controlled by his employer, etc. – then, when he goes to the United States and discovers his employer had lied to him, and instead he is completely controlled and supervised by a third-party client, he would not be guilty of misrepresenting his situation.

Not all employees, however, know and understand the full extent of their work conditions in the United States, or they may know some of the factors, but not all. If you are not sure about a particular factor and you provide the answer you think the consular officer wants to hear so that you get your visa, and that answer turns out to be wrong, even if you didn’t know what the actual condition would be, you could still find yourself barred from the United States for misrepresenting your work situation. So, for example, statement 14 says your employer will be claiming you for tax purposes. You may never have discussed such internal business operations with your prospective employer, so you may not know personally that your employer is claiming you for tax purposes, but you assume so, and you agree with the statement anyway to get your visa. Then, later if that statement turns out to be wrong, you could be found to have mislead the consular officer and be barred from the United States.

What Can I Do to Minimize the Risk I Might be Banned?

To avoid the harsh consequences presented by this attestation, be sure to always tell the truth. If you don’t know the answer to a question, just tell the consular officer. Don’t tell the consular officer what you think might be correct so that you can get your visa now rather than have to wait until you obtain the information and can get a follow up appointment. Now that you know you could be asked to sign such an attestation, you can prepare yourself in advance and ask the employer about your work conditions so you can respond fully and truthfully.

For more information about legal services we provide to H-1B employees, please 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

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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.

Most of those who plead guilty did so to a single misdemeanor charge of failing to file a change of address when they moved to a new work location, a USCIS requirement. They were fined $200, according to public records filed in the U.S. District Court, Southern District of Iowa. One employee plead guilty to three counts of failing to change his address and was fined $600, but had no condition he cooperate with prosecutors.  Another had his charges dismissed entirely, apparently because he agreed to serve as a witness at trial, according to court records.

The eight employees were arrested in 2009 along with their employers on felony charges related to the submission of H-1B and immigrant visa petitions for jobs in Iowa that did not exist. Vision Systems, headquartered in New Jersey, was accused of setting up a shell company called Venturisoft in Iowa, where prevailing wages for tech jobs are lower than in other parts of the country, such as California. Instead of working in Iowa, the H-1B employees allegedly were farmed out to companies throughout the United States without notifying USCIS.

Such practices violate Department of Labor and USCIS regulations and are common among unscrupulous H-1B employers commonly referred to as “body shops.” These body shops lure H-1B employees with the promise of well-paying tech jobs in the United States. When an employee arrives, however, he finds no job exists and he won’t be paid. Instead, he is told to go out and get himself placed with a third-party company and only then would he be paid. If he is not working, he is benched without pay, in violation of the law. The employee often is afraid to confront the employer about the unlawful activity, fearing for his immigration status.

When the government filed criminal charges last year against Vision Systems and its owners, the fact that the H-1B employees were also indicted sent a chill through much of the H-1B worker community. That prosecutors did not pursue the felony conspiracy charges and instead used them as leverage to gain the employees’ cooperation, should serve as some relief to other H-1B workers who are now or have been victims of such unlawful employer practices that jeopardizes immigration status.

(In the authors’ experience, most H-1B workers we’ve encountered do not join or conspire with their employers to participate in unlawful activities: if you are concerned about your own H-1B employer and actions it wants you to do, you should consider a confidential assessment of your situation by an attorney).

The Vision Systems indictments were one of the early cases testing whether criminal charges would stick against employers who violate H-1B regulations. Although federal prosecutors settled last year for guilty pleas from the two Vision Systems owners to reduced charges with no imprisonment, the case still resulted in a criminal conviction. With a successful test run under their belt, prosecutors have since pursued additional employers and obtained convictions with imprisonment. See our blog article on several recent convictions here. If you have been benched, underpaid, or promised a job that didn’t exist, you should consider contacting an attorney to examine potential relief (e.g. payment of wages owed, help with a lawful H-1B transfer) for that situation, and to ensure you are compliant with the law when you take action to improve your situation.

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

There are many, many different factual and legal issues that arise in employment disputes.

However, there are a few fundamental, core issues that underlie nearly all employment disputes and lawsuits.

The biggest cause of employment lawsuits I see is poor communication- most commonly, a worker letting anger or knee-jerk reactions control the way he or she communicates and acts.

The fix to prevent this is what a parent told you: Count to Ten.  Before you react out in an angry or knee-jerk fashion, take time to calm down, assess the situation, and take heart of the full gravity of the situation and the possible outcomes if various actions are taken.

If you are in a calm and factual state of mind, you will often deal with a situation much better than if you had acted out of emotion.

In almost every circumstance, when an issue arises at work (whether severe or minor), the people involved are able to work through the issue, with no one needing to lose their job or otherwise be harmed, if everyone keeps their cool.  Heck, if one side keeps their cool, that’s usually enough to make the other side calm down.

But once issues become personalized by either side, and communication suffers, then the matter is at high risk of leading to injury (e.g. lost job or wages or litigation-related expense) and festering until a much later resolution.  Those who count to ten almost always wind up in a better position.

Posted via email from Mike Brown’s posterous

Posted via email from Mike Brown’s posterous

The online compliance tool called the H-1B Advisor  describes the H-1B program’s standards, including notification requirements, monetary issues, work site issues, record keeping, worker protections and enforcement.

For H-1B employees, it discusses among other issues your right to be paid the required wage even when benched, permitted payroll deductions, and prohibitions against imposing financial penalties against you if you change jobs before your H-1B period ends with your current employer.

Please note the new advisor tool focuses solely on compliance with the requirements enforced by the Wage and Hour Division of the U.S. DOL and does not address USCIS program requirements.

Additional Information

For more H-1B employee rights information, please visit the blog’s main page at http://www.h1blegalrights.com/. For information about Legal (Attorney) Services for H-1B employees, please visit here.

To learn more about H-1B rights and options, please see these posts: 

• FAQ: I’ve Been Benched and Have No Pay Stubs. Can I Change My H-1B Visa?
• Employee Tip: If You’re an H-1B Worker Being Underpaid Wages, Consider These Things
• 5 Reasons Why an H-1B Employer Would Want to Reach Settlement With An Underpaid Employee
• H-1B Workers’ Fears vs. Fighting for Your Rights
• FAQS- If You Were Underpaid as an H-1B Worker and Are No Longer in the U.S.

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 begin_of_the_skype_highlighting     end_of_the_skype_highlighting 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.

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.