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.

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.

Were you forced to pay for your H-1B application fees? Did your employer order you to travel to another city for work and make you pay for your own hotel? Did your employer make you pay for your plane trip to the United States from your home?

Can your employer do that?

In this article we explain what your employer may and may not make you pay for as an H-1B employee. See 20 CFR 655.731.

Prohibited Deductions

An H-1B employee, whether through payroll deduction or otherwise, can never be required to pay the following:

1) A penalty (as defined by state law) for the employee’s failure to complete the full employment period;

2) Any part of the $750/$1500 statutory Department of Homeland Security’s U.S. Citizenship and Immigration Services (USCIS) petition filing fee; and/or

3) Any deduction for the employer’s business expenses that would reduce an H-1B worker’s pay below the required wage rate, including:

• Any expenses, including attorneys’ fees, directly related to the filing of the Labor Condition Application (Form ETA 9035 and/or ETA 9035E);
• Any business expenses, including attorneys’ fees and application fees, directly related to the filing of the H-1B petition (Form I-129/129W)
• Tools and equipment; and
• Travel expenses while on employer’s business. (Initial transportation to the United States is not considered a business expense, meaning the employer can require the employee to pay for the trip.)

Permitted Deductions

Deductions, other than those excluded above, may be made, even if they reduce the H-1B worker’s pay below the required wage rate, only when the deductions satisfy one of these three categories:

1) Required by law (e.g., income taxes); or

2) Reasonable and customary (e.g., union dues, insurance premiums); or

3) Voluntarily authorized by the H-1B worker which meet all of the following standards:

• There is a voluntary, written authorization by the employee;
• The deduction is for a matter principally for the benefit of the employee, such as reimbursement for travel to the United States or payment for food and lodging, so long as the food and lodging expense is (a) not incurred while traveling on the employer’s business; and (b) not in circumstances indicating that the employee’s housing or food are principally for the employer’s benefit (e.g., employee living at worksite in “on call” status);
• For an amount that does not exceed the fair market value or the actual cost (whichever is lower) of the matter covered; and
• The amount does not exceed the limits for garnishments set by the Consumer Credit Protection Act

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:

• 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 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.

If you complained to your H-1B employer because they committed wrongs– such as making you pay H-1B filing fees and benching you without pay– you may find the employer has compounded the problem by threatening or harassing you because of your complaint.

The law prohibits an employer from retaliating against you for complaining about the employer’s unlawful H-1B practices.  With that said, the law also prohibits people from driving through red lights, but plenty of people do it anyway. Just as people ignore the law and run red lights, employers may ignore the law and retaliate against you for complaining about their unlawful conduct.

This post discusses common ways H-1B employers may retaliate against  H-1B workers who complain, and what H-1B workers should consider when dealing with such threats or harassment.

If you complained about your H-1B employer’s unlawful conduct (e.g. complained that they’re benching you without wages), the employer may have responded with one or more of these common threats:

• Threatening to terminate your employment;
• Threatening to contact USCIS and revoke your visa;
• Threatening to have you deported;
• Threatening to bring a lawsuit against you (sometimes, such a threat will be made, based on an employment contract or non-compete requirement that the H-1B employer claims you violated); and/or
• Threatening to disclose negative information about you to potential employers or other third parties.

Some H-1B employers make threats like those above, while others will retaliate with various forms of harassment like:

• Calling you repeatedly and begging you not to take legal action;
• Calling your family members and pressuring them to ask you not to take legal action;
• Having members of the owner’s family call you, acting as if they are a friendly or impartial actor, and asking you for information;
• Trying to play on your sympathies, claiming that if you make a legal complaint it will harm the employer’s owner and the owner’s family (often this plea for sympathy is made by the same person who knew that YOU and your family were being deprived of months’ worth of income while you were on the bench, but was not concerned about your well-being at that time); and/or
• Making promises they won’t keep, such as claiming a great project is right around the corner when in reality nothing has changed.

Things to Consider When You are Being Threatened or Harassed

If you are being threatened or harassed, here are some things you should consider:

• Learn about your H-1B legal rights.

Many H-1B workers quietly accept threats and harassment because they are not aware of their rights.  Many H-1B workers are not aware of laws that an H-1B employer is violating or enforcement mechanisms (such as retaining an attorney and/or filing a Department of Labor complaint) that are available.

If your H-1B employer has underpaid you or otherwise treated you unfairly, there are several types of laws that may potentially be violated. The laws include: (1) immigration law and Department of Labor (DOL) regulations (e.g. regulations requiring that the “prevailing wage” be paid to H-1B workers, or regulations requiring that the employer not deduct certain expenses from H-1B workers’ paychecks); (2) federal overtime and minimum wage laws; (3) state wage laws; and (4) various fraud laws.

Here is a link to immigration regulations that address an employer’s obligations to you.  These laws include, but are not limited to, the employer’s obligations (1) to pay you the prevailing wage or actual wage; (2) to provide you comparable benefits (health insurance, etc.) as U.S. workers are provided; (3) to not make unfair deductions from your paychecks (e.g. to cover certain visa costs, rent deductions, etc.).

The DOL provides summary information about H-1B employees’ rights at this webpage and this one as well.

As DOL’s web page indicates, H-1B workers can file wage complaints to DOL – you can find your local DOL contact information here, to learn more about filing a wage complaint.

Before you file a DOL complaint, you may want to consider the factors mentioned in this post.

• Document what the H-1B employer is doing and save documentation.

You should consider (1) keeping a journal with detailed notes about the H-1B employer’s acts, with the dates, names and details of what occurred (e.g. “10-1-09: Manager John Doe called me at 5:15pm, and told me to pay $1,500 for an ‘immigration document fee,’ or else I would be fired”); and (2) SAVING documents and other proof (e.g. voice messages, emails, sms/text messages, etc.) of what the employer did wrong.

See our post here for more information about keeping a journal and saving documents and other proof.  The post here addresses issues with making recordings.  (Before making any recording without consent, it is important you become familiar with the laws that apply to recordings in your area– for example, some States say it is illegal to tape-record someone unless both parties to the communication have consented).

• Consider what leverage you have– it is usually more than the leverage a fraudulent H-1B employer has.

As you learn more about the H-1B legal rights you have, and how strong some of those rights are if pursued appropriately, you may learn that you are actually in a position of strength as compared to the H-1B employer.

Often, H-1B workers who start from a position of weakness (e.g. a benched H-1B worker’s employer has ignored months’ worth of requests for wages, and has responded to complaints with threats) wind up in a much better position after they retain an attorney who will assist them in communications with their employer and making the employer truly understand that the H-1B worker has rights that can be legally enforced.

• Consider getting outside help from an H-1B rights attorney and/or from the Department of Labor.

Once an H-1B worker retains an attorney, that typically (although not always) causes the employer to retain their own attorney.  Usually, once a fraudulent H-1B employer has retained their own attorney, and truly understands that it may be held legally-accountable for its misconduct, the employer (and its attorney) will take the H-1B worker and his or her attorney seriously.

After an H-1B worker retains an attorney, usually the H-1B worker will see signs of genuine progress from the employer that were not present before. For example, the employer may offer to pay settlement money and/or overdue back wages that were not offered to the H-1B worker while he or she was trying to deal with the employer on his or her own.

Another way some H-1B workers cause an employer to take them more seriously is to pursue a wage complaint at DOL.  Before you file a DOL complaint, you may want to consider the factors mentioned in our post here.

Many workers find that in acting on their own– sometimes, even after filing a DOL complaint on their own– they don’t get much progress from the H-1B employer.  A fraudulent H-1B employer often reacts to informal complaints from H-1B workers with threats or harassment of the type discussed above, or with empty promises.  In these types of circumstances, an attorney and/or a DOL complaint and DOL investigation may make a positive difference.

• PLAN before you act; get a safety net in place.

If you are facing threats and/or harassment from your H-1B employer, you have many potential options and outcomes.  Before you take any ACTION toward those outcomes, however, it is good to PLAN.  That is, you should think “If THIS happens, that how can I PLAN to prepare for that scenario.”

For example, if you are concerned the H-1B employer may fire you for a wage complaint you want to make, then you may want to look for another job, and educate yourself about the H-1B transfer requirements, before you make the complaint.

Often, you can make plans to protect yourself by looking for a transfer to a new job and new H-1B employer, or by making arrangements for some other safety net (e.g. a student visa for a school program of interest).  An attorney can assist with the logistics of these plans.

For more information, see our posts titled “When H-1B Employment Trouble Arises, Start Work on Plan B Immediately” and “Learn ALL About Your H-1B Rights Before You Give Your Employer An Earful About Them.”

Additional Information

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

• Employee Tip: If You’re an H-1B Worker Being Underpaid Wages, Consider These Things
• H-1B Employee Tip: What To Do When Your Employer Refuses To Give You Your H-1B Documents
• Keeping Your Nose Clean: Refuse Your H-1B Employer’s Requests to Break the Law
• Will I Be Deported If I Complain Against My H-1B Employer?

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. Vandaveerof 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.

Does your H-1B employer make illegal demands (e.g. demand that you pay them $3,000, or else they’ll fire you and cancel your visa), and make such illegal demands over the phone or in person, as opposed to in email/writing?

When H-1B employers make fraudulent requests, they often make the requests over the phone or in person, so there is no written proof of the illegal requests.

If you are confronted with this situation, where your H-1B employer is making many illegal requests that are not put in writing, you may be tempted to make a tape or digital recording of the employer’s illegal requests.

Before making a recording, however, you should consider the various issues raised in this post.  (Please note this post does not provide legal advice- if you want legal advice, you should contact an attorney and discuss your specific circumstances).

Please consider these things before you make a recording:

• There are several federal and state laws in the U.S. that apply to recordings and restrict your ability to record a conversation.
• You may not know about the laws that apply to your situation, or you may have incorrect assumptions about the laws (for example, you may assume the laws only apply to “wiretapping” of phone lines without the callers’ knowledge, but in fact the laws are much broader and apply to in-person recordings, recordings where one or more parties has consented to the recording, etc.).
• The laws’ requirements are different, depending on what state you are in.
• The laws’ requirements are different, depending on whether a party has consented to the recording (e.g. under federal law it is permissible to record a phone call if only one of two parties on the line have consented; whereas under several states’ laws, all parties on the conversation must consent for it to be lawfully recorded).
• The laws’ requirements are different, depending on what type of communication is being recorded (e.g. laws differ for recording an in-person discussion as compared to recording a phone conversation).
• Some laws apply to the making of the recording, whereas other laws concern whether or how the recording can be used, e.g. whether it can be used as evidence in a legal proceeding.

This website, “Can We Tape?” by the Reporters Committee for Freedom of the Press, has detailed information summarizing federal and state laws concerning recordings, including State-by-State summaries, so you can look up information about laws that apply in your particular State.

Please note: This website (as well as this post) provide general information, but NOT legal advice.  Laws often change, and do so more rapidly than websites are updated.  Also, websites do not, of course, evaluate your specific circumstances. An attorney can evaluate your specific circumstances only after an in-depth consultation. With that said, the the Reporters Committee for Freedom of the Press website is a good place to familiarize yourself with overviews of the law concerning recordings, and issues you should be aware of.

The following helpful summary is stated on the website’s introduction page:

…[Federal and state] statutes address wiretapping and eavesdropping – listening in on conversations of others without their knowledge – they [also] usually apply to electronic recording of any conversations, including phone calls and in-person interviews.

Federal law allows recording of phone calls and other electronic communications with the consent of at least one party to the call. A majority of the states and territories have adopted wiretapping statutes based on the federal law, although most also have extended the law to cover in-person conversations. Thirty-eight states and the District of Columbia permit individuals to record conversations to which they are a party without informing the other parties that they are doing so. These laws are referred to as “one-party consent” statutes, and as long as you are a party to the conversation, it is legal for you to record it. (Nevada also has a one-party consent statute, but the state Supreme Court has interpreted it as an all-party rule.)

Twelve states require, under most circumstances, the consent of all parties to a conversation. Those jurisdictions are California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania and Washington. Be aware that you will sometimes hear these referred to inaccurately as “two-party consent” laws. If there are more than two people involved in the conversation, all must consent to the taping.

Regardless of the state, it is almost always illegal to record a conversation to which you are not a party, do not have consent to tape, and could not naturally overhear.

Federal law and most state laws also make it illegal to disclose the contents of an illegally intercepted call or communication.

To sum it up, recording a communication with your H-1B employer could be a good idea, or a bad idea, depending on circumstances like those identified above.  If you learn more about the issues above and/or consult with an attorney before recording any communications, you are more likely to make better decisions with regard to your legal rights and to any potential legal claims that could be pursued in the future.

Additional Information

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

• Employee Tip: If You’re an H-1B Worker Being Underpaid Wages, Consider These Things
• H-1B Employee Tip: What To Do When Your Employer Refuses To Give You Your H-1B Documents
• Keeping Your Nose Clean: Refuse Your H-1B Employer’s Requests to Break the Law
• Will I Be Deported If I Complain Against My H-1B Employer?

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. Vandaveerof 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.

It is understandable to feel highly frustrated by an H-1B employer who has benched you, underpaid your wages, unlawfully required you to pay filing fees, and/or committed frauds against you.

But don’t let your frustration cause you to make careless postings of public information about all the hurt and anger you feel, and all the details and opinions on your mind.  Once you post specific identifying information (H-1B employer’s name) and alleged conduct, you are crossing into a threshold where negative consequences can occur.

When people are hurt, they tend to communicate in an emotional, and often counterproductive, manner.  For example, it’s common to see message-board posts by underpaid H-1B workers saying something like this: “[EMPLOYER NAME] BENCHED ME FOR 6 MONTHS WITH NO PAY- THEY ARE NOTHING BUT SCAM ARTISTS- DON’T WORK THERE UNLESS YOU WANT TO LIVE A NIGHTMARE!!!”

The core fact this message conveys is this: the H-1B worker was benched and lost six months’ wages.  But the rest of the information is unnecessary, emotional and subjective– fightin’ words, so to speak.

These sorts of words can make their targets angry.  In some instances, an H-1B employer could accuse a message-board poster of making false statements, and could bring a lawsuit for defamation against the poster.  Here are several examples of defamation lawsuits brought by parties who were badmouthed online.

There is no use for fightin’ words in the legal world: the facts are what matter, e.g. facts about an H-1B worker’s unpaid wages and benching.

And the facts only matter if they are communicated to the right place: to an attorney, to a legal decision-maker, or to someone else who can help.

Information that is posted on messages boards and the like is posted to everyone- to some people who could possibly help you, but also to some who could possibly hurt you.

If the H-1B employer reads negative information and details that you post about the employer, the employer could decide to make an issue, or a lawsuit, out of your post.  The legal focus could shift from the core issue (unpaid wages, fraud, etc.) to the issue of the comments you posted about the employer, and whether they were necessary, professional, or true.

Yes, truth is a defense to a defamation claim.  But no defense is guaranteed.   And even if you had a winning defense to a defamation claim, you would still have to pay for defending yourself in court, in all likelihood, if a lawsuit were filed.  The best plan is to avoid the risk altogether, and not make negative message board posts in the first place.

If you want to fight an H-1B employer, make sure the fight is in the right forum (e.g. communicated via an attorney or legal proceeding, not via a message board), and fight with the facts rather than emotional adjectives or opinions.  If a party is talking about “nightmares” and the like on message boards, that party runs the risk that in later legal proceedings the party may be viewed as unprofessional or not credible, even if they are in the right.

Additional Information

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

• Employee Tip: If You’re an H-1B Worker Being Underpaid Wages, Consider These Things
• H-1B Employee Tip: What To Do When Your Employer Refuses To Give You Your H-1B Documents
• Keeping Your Nose Clean: Refuse Your H-1B Employer’s Requests to Break the Law
• Will I Be Deported If I Complain Against My H-1B Employer?

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. Vandaveerof 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.

Our law offices commonly receive phone calls from H-1B workers who: (1) have unpaid wages; (2) filed a Department of Labor (DOL) wage complaint; (3) and THEN called our law offices.  At this point, they often ask us whether we can provide legal advice for their DOL matter, or whether they can pursue different matters.

If you want to learn more about a DOL complaint, learn before you file it, if possible.

A legal complaint involves a process.   Much like piloting an airplane is a process.  Would you jump in the cockpit of a plane and try to fly it before you learned anything about how the plane functioned?  Without knowing how to anticipate, analyze and adapt to the weather conditions?  Without knowing- most importantly- where you are trying to go, and the routes to get there?

Fortunately, a DOL complaint is not nearly as complex as piloting an airplane, and DOL offers helpful information (although not legal advice) to help H-1B workers with the process.  But H-1B workers who file a DOL complaint before learning what the process involves often find themselves with several unknowns and in a more difficult situation, and needing more assistance, than they expected.  Sometimes an H-1B worker will find, after filing the DOL complaint, that better options existed and could have been pursued along with (or in some cases, instead of) the DOL complaint.

Further, H-1B workers who file a DOL complaint often do so without thinking about their goals.  Often, they don’t consider whether a DOL complaint- as compared to a pre-litigation settlement, or as compared to federal court litigation, for example- is the best way to achieve those goals.

Before you file a DOL complaint, there are several questions you should consider.

What is the deadline, and am I past it?

It is very important you immediately learn what legal statutes of limitations (deadlines) apply to your matters.  In most circumstances, an H-1B worker has 1 year from their last H-1B work date to file a wage complaint called a WH4 complaint with DOL.  If you are beyond the DOL deadline, your cannot file a complaint with DOL.  However, there may be other types of legal actions with longer deadline periods which you may still be within.  An H-1B rights attorney could help analyze all the potential legal claims and deadlines.

What are my goals?

Obviously, one goal is probably to get your unpaid wages, as well as recover any money the H-1B employer unlawfully made you pay, e.g. H-1B filing fees.

Here are some other goals H-1B workers may consider before filing a DOL complaint:

• the timing of payment- for example, if you were now paid a settlement worth $5,000 less than your full unpaid wages’ value, is that better than being paid your full wages (i.e. being paid $5,000 more) many months or years from now, after a legal decision?
• are there other legal damages/monies, in addition to wages, that are available through other legal claims?  For example, an H-1B worker could pursue a federal court claim for civil RICO violations against an H-1B employer, and try to recover triple the value of wages.
• how much risk are you comfortable with?  If you file a DOL complaint, a federal court complaint, or any other type of legal complaint, there is necessarily risk involved.   In litigation, each party faces risk (high, low, or somewhere in between) that the party will lose.  How much risk depends on the circumstances.  If the parties reach settlement, they can avoid a good deal of risk because they know what is being paid, and what the terms of settlement are: they don’t have to take the risks involved with a third-party legal decision-maker making the decisions about who wins, and who wins what.
• are you vulnerable and want to protect yourself from retaliation by the H-1B employer?
• is your immigration status a concern?

Your goals can make a big difference in deciding whether you should file a DOL complaint, and when you should file a DOL complaint.

What is the H-1B Employer’s Financial Situation?

You should consider researching the employer’s financial situation before filing a DOL complaint, time permitting.  If the H-1B employer’s financial situation is poor- if, for example, the employer is on the verge of bankruptcy, and racked with tax problems- the employer is at risk of not paying the monies it owes you if it loses a legal decision.

How long will the DOL process take?

It can take many months, even years, for a given DOL complaint to reach a final legal resolution.  Before filing a DOL complaint, you can contact your local DOL office (anonymously, if you wish) and ask them the average length of time it takes for a WH4 complaint to be resolved in that district.

What options do I have other than a DOL complaint, and are any of those options good for my goals and circumstances?

An H-1B worker who has the option of filing a DOL complaint often has other options as well, such as: (1) filing a federal court complaint; or (2) trying to reach a settlement with the employer without any legal complaint being filed.

Should I Talk to an H-1B Rights Attorney?

Yes.  An attorney who is experienced with H-1B wage matters and related issues (e.g. benching, fraud, immigration status issues) can listen to your specific situation and suggest specific options that address your personal goals.

In many instances, an attorney will advise a DOL complaint be filed: often, a DOL complaint turns out to be a very effective means to pursue and recover unpaid wages.  In other instances, an attorney may feel other options are better.  If you file the DOL complaint before you talk to an attorney and learn about other options, you may be hurting or even eliminating some of those other options.

A DOL complaint is one option amongst several: if you have interest in talking to an attorney about all your options, you should have that discussion before you take action on any of those options.

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:

• 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 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.

If you have been benched, your employer may approach you and ask you to sign a document that falsely states that you took voluntary leave (e.g. vacation leave, medical or family leave) when in fact you were benched due to the employer’s failure to provide work.  Some employers back-date these forms, and ask H-1B employees not only to pretend that their lack of work time was voluntary, but also to falsely state that they had asked for the “voluntary” leave many months in the past.

If your employer presents you with a form asking you to sign off on false statements about taking leave- or asks you to state false information of any kind- don’t do it.

Below are links to posts about dealing with H-1B employer requests to falsify information and dealing with issues relating to being benched.  There are better potential options to consider than those offered by an employer soliciting false information.

• Keeping Your Nose Clean: Refuse Your H-1B Employer’s Requests to Break the Law
• 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

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.

ShareThis

First, ask your employer about it. Perhaps your W-2 was sent to a wrong address and you simply need a new one issued. If the W-2 contained wrong information, tell your employer to correct it.

If you have already asked your employer for a W-2, or a corrected W-2, and one still has not arrived, you should call the Internal Revenue Service (IRS) at (800) 829-1040.  The IRS will prepare a complaint and send it to the employer directing him to provide a proper W-2 and warning of the penalties for failure to do so. Employers who fail to provide a W-2 to an employee or to correct incorrect W-2s are subject to penalties up to $100 per form.

The IRS provides detailed instructions on how to deal with the situation here: http://www.irs.gov/newsroom/article/0,,id=106470,00.html

When calling the IRS be sure to have the following information ready:

• Employer’s name, address, city, and state, including zip code;
• Your name, address, city and state, including zip code, and Social Security number; and
• An estimate of the wages you earned, the federal income tax withheld, and the period you worked for that employer. The estimate should be based on year-to-date information from your final pay stub or leave-and-earnings statement, if possible.

Please note that you must still file your return on time even if you do not receive your Form W-2. If you have not received your Form W-2, you may use Form 4852, Substitute for Form W-2, Wage and Tax Statement. Attach Form 4852 to the return, estimating income and withholding taxes as accurately as possible.

If you receive your you missing W-2 at a later date or if it has some conflicting information, you can amend your return by filing a Form 1040X, Amended U.S. Individual Income Tax Return. (Instructions available here)

If you have any questions pertaining to your taxes we urge you to contanct a Certified Public Accountant (CPA) to minimize any problems.

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:

• 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 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.

Has your H-1B employer asked you to work in a city different than the city stated in your H-1B documents?  Or, has your H-1B employer told you to list a different address on your tax forms other than where you are actually living and working?  Has your H-1B employer benched you without pay, but offered to provide fake pay stubs for your (or your family member’s) immigration requirements?

If you are asked to participate in any of these activities, the answer is simple: No.

No matter how much pressure you feel, you must refuse any unlawful requests.

You must not:

• Perform work that is different than the type of work stated in your H-1B documents (e.g. you must not work in a different city or at a different type of job than the city and job type stated in your H-1B documents);
• Falsify documents (e.g. put false information on resumes, visa documents, tax documents, etc.);
• Use falsified documents (e.g. use phony pay stubs the employer gave you for immigration law purposes); or
• Work a “second job” or new job, unless you get a lawful H-1B transfer to that job or obtain other work permission.

You may feel financial pressure to do the things above because you have been “benched” or underpaid or are feeling threatened (directly or indirectly) by the employer.  But you must find a way to refuse.

What to Do:

If you are being asked to do the unlawful activities above, you should consider: (1) refusing or delaying your response to the employer’s request; (2) collecting whatever proof (documentation, emails, etc.) you have that proves the employer is making the unlawful request; (3) consulting promptly with an immigration attorney about your situation (not an attorney your employer had set you up with for the H-1B application process); and (4) working with the attorney on a plan to communicate your refusal to the employer and plans for making sure your next employment relationship is lawful.

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:

• 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 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.