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

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

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

No Grace Period

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

Failure to Maintain Status

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

Extraordinary Circumstances

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

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

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

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

Plan Ahead; Save Yourself

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

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

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

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

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

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

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

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

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

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

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

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.

You may be in a situation where (1) an employer has violated your trust in the past, and you are uncomfortable with that employer; but (2) you still need something from that employer– their payment of overdue wages, their approval of a pending administrative request, etc.

Often, I see employees in this situation– that is, employees who need something from an employer who wronged them– try to negotiate directly with the employer, without the assistance of an attorney or other advocate (e.g. a union representative).

You may be inclined to do this: to try on your own to “work something out” with an employer you distrust.  You may realize you hadn’t been successful in the past, but this time, you may think, the employer will realize you are serious.  Perhaps you feel you have new leverage or demands.  Maybe you recently found legal information on the internet, and you are prepared to threaten a lawsuit if the employer does not treat you fairly like you ask.

Before you talk to the employer further, or make any threats of legal action, please consider doing this: (1) take a step back, to review the big picture; and (2) talk to a trusted third party (whether it’s a lawyer, a union leader, a family friend who is experienced in these employment matters, etc.).

A knowledgeable third party often has a broader perspective on the big picture than the mistreated employee does.

For one thing, a third party is not as emotionally-involved with your matter, and as such their eyes are open to some obvious things that you may not want to see, but need to.  A third party may give you the wake-up call you need, and say, “Hey, do you think your third attempt on your own to get this employer to act fair is going to work out better than the first two times?”  Sometimes it takes someone else to state the obvious before we’re open to believing it.  A third party can give a reality check.

Also, a knowledgeable third party, such as an employment attorney, may have repeated experience dealing with the same type of scenario you’re dealing with. From that experience, they could tell you why the action you’re contemplating– for example, maybe you want to complain to management about a particular wage issue– may be a bad idea or a good idea.

An experienced third party will know from experience which approaches are likely to work, and which aren’t.  As an employment attorney, I have had hundreds of communications involving employers and unpaid wages.  An employee could learn from my experiences what types of communications are most likely to have good outcomes.  Left on your own, you may try a form of communication that– while it may seem instinctive or logical– is a type of communication that I know has failed time and again for dozens of employees.

Generally speaking, employees are better off when they talk to a third party before they try to negotiate with an unfair employer, rather than after.   When an employer controls something that is very important to you– like wage money you need for rent– it is all the more important that before communicating with the employer, you prepare carefully, and seek input from a trusted adviser who has dealt with similar situations before.

If you don’t compare the proposed employment conditions with USCIS requirements, you risk being denied an H-1B visa or change of status. In particular, if your H-1B employer will place you at client worksites to perform your job, you may not qualify for H-1B status.

USCIS recently issued a guidance memo describing the type of H-1B employee-employer relationships that are acceptable for H-1B purposes.

The memo was issued in response to ongoing confusion over what constitutes a valid employer-employee relationship in the H-1B context. This guidance will look familiar to any immigration attorney or H-1B employer who has received a request for additional evidence (RFE) in the recent past. The guidance reflects the substance of those RFE’s requiring proof the work is to be performed for the employer and requesting details on any on-site work with a third party.

USCIS, in deciding whether an H-1B employee/employer relationship is valid, focuses on the issue of control. USCIS must be satisfied the H-1B employer has a sufficient level of control over the H-1B employee. To satisfy USCIS, the H-1B employer must be able to establish that it has actual control of (or the right to control) when, where, and how the H-1B worker performs the job. 

The following describes the type of H-1B employer-employee relationships that are and are not acceptable.

Acceptable:

Traditional Employment

The H-1B employee works at an office location owned or leased by the employer; the employee reports directly to the employer on a daily basis; the employer sets the work schedule of the employee; the employee uses the employer’s tools or instrumentalities to perform the duties of employment; and the employer directly reviews the work-product of the employee. The employer claims the employee for tax purposes and provides benefits to the employee.

Temporary/Occasional Off-Site Employment

For example, say the H-1B employer is an accounting firm with numerous clients. The H-1B employee is an accountant. The employee is required to travel to different client sites for auditing purposes. In performing such audits, the employee must use the H-1B employer’s established firm practices. When the H-1B employee travels to an off-site location outside the geographic location of the H-1B employer to perform an audit, the H-1B employer provides food and lodging costs to the employee. The employee reports to a centralized office when not performing audits for clients and has an assigned office space. The H-1B employee is paid by the H-1B employer and receives employee benefits from the employer.

Long-Term/Permanent Off-Site Employment

For example, say the H-1B employer is an architectural firm and the H-1B employee is an architect. The H-1B employer has a contract with a client to build a structure in a location out of state from the H-1B employer’s main offices. The H-1B employer will place its H-1B architects and other staff at the off-site location while the project is being completed. The contract between the H-1B employer and client states that the employer will manage its employees at the off-site location. The H-1B employer provides the instruments and tools used to complete the· project; the H-1B employee reports directly to the H-1B employer for assignments; and progress reviews of the H-1B employee are completed by the H-1B employer. The underlying contract states the H-1B employer has the right to ultimate control of the H-1B employee’s work.

Long Term Placement at a Third-Party Work Site

For example, the H-1B employer is a computer software development company which has contracted with another, unrelated company to develop an in-house computer program to track its merchandise, using the H-1B employer’s proprietary software and expertise. To complete this project, the H-1B employer has contracted to place software engineers (including H-1B workers) at the client’s main warehouse where the engineers will develop a computer system for the client using the H-1B employer’s software designs. The H-1B employee is a software engineer who has been offered employment to fulfill the needs of the contract between the H-1B employer and the client. The H-1B employee performs his duties at the client company’s facility. While the employee is at the client company’s facility, he reports weekly to a manager of the H-1B employer. The employee is paid by the H-1B employer and receives employee benefits from it.

Unacceptable

Third-Party Placement – “Job-Shop”

For example, the H-1B employer is a computer consulting company. The H-1B employer has contracts with numerous outside companies under which it supplies these companies with employees to fulfill specific staffing needs. The specific positions are not outlined in the contract between the H-1B employer and the third-party company, but are staffed on an as-needed basis. The H-1B employee is a computer analyst. He has been assigned to work for the third-party company to fill a core position to maintain the third-party company’s payroll. Once placed at the client company, the H-1B employee reports to a manager who works for the third-party company. The H-1B employee does not report to the H-1B employer for work assignments, and all work assignments are determined by the third-party company. The H-1B employer does not control how the H-1B employee will complete daily tasks, and no propriety information of the H-1B employer is used by the H-1B employee to complete any work assignments. The H-1B employee’s end-product, the payroll, is not in any way related to the H-1B employer’s line of business, which is computer consulting. The H-1B employee’s progress reviews are completed by the client company, not the H-1B employer.

Independent Contractors

For example, the H-1B “employee” is a sales representative. The H-1B “employer” is a company that designs and manufactures skis. The H-1B “employee” sells these skis for the H-1B “employer” and works on commission. The H-1B “employee” also sells skis for other companies that design and manufacture skis that are independent of the H-1B “employer.” The H-1B “employer” does not claim the H-1B “employee” as an employee for tax purposes. The H-1B “employer” does not control when, where, or how the H-1B “employee” sells its or any other manufacturer’s products. The H-1B “employer” does not set the work schedule of the H-1B “employee” and does not conduct performance reviews of the “employee”.

Self Employed Beneficiaries

For example, the H-1B employer is a fashion merchandising company that is owned by the H-1B employee. The H-1B employee is a fashion analyst. The H-1B employee is the sole operator, manager, and employee of the petitioning company/H-1B employer. The H-1B employee cannot be fired by the H-1B employer/company. There is no outside entity which can exercise control over the H-1B employee. The H-1B company has not provided evidence that the corporation, and not the H-1B employee herself, will be controlling her work.

What Does this New Guidance Mean for Current and Prospective H-1Bs?

This new guidance means both prospective and existing H-1B employees looking for an employer need to be wary of any job in particular where they are to be placed at a third-party location. This practice is particularly common in the IT industry.

H-1B workers should also be mindful of situations where their prospective H-1B employers will not be exercising much control over the H-1B employees’ work.  As mentioned in the “Unacceptable” examples above, those employment situations with minimal H-1B employer control are at risk of being deemed unacceptable by USCIS for an H-1B classification.

If you are contemplating an employment relationship for H-1B classification, you should scrutinize the nature of the job placement and seek advice from a competent immigration attorney to ensure your potential job has the valid employer-employee relationship required.

You can find a copy of the policy guidance here on the USCIS website.

In addition, USCIS has issued a Frequently Asked Questions on the issue, available here. 

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
• H-1B Fraud Detection Site Visits in Full Swing. What Should You Expect?
• 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.

In this article we explain what happens during these site visits and your rights and obligations under the law so you know what to expect if USCIS shows up at your office.

Background

USCIS established the Fraud Detection and National Security Office (FDNS) in 2004 with a mission to combat immigration benefit fraud. The unit is funded through the $500 fraud fee your employer pays as part of the H-1B application process.

The information collected is used to develop databases to identify factors and trends that could indicate fraud as well as to initiate investigations of employers suspected of H-1B fraud. FDNS works with and is the main source of information for other governmental agencies, including Immigration Customs and Enforcement (ICE).

Will my employer be visited?

It’s likely. The FDNS has approximately 650 immigration officers, researchers and analysts throughout the United States who are ready to drop in unannounced to audit your employer’s H-1B program. The FDNS also has contracts with many private investigation firms for conducting site visits on behalf of the government.

In addition to the cases referred as part of the regular H-1B adjudication process, the USCIS Vermont and California Service Centers have referred approximately 40,000 cases to the FDNS as part of the H-1B assessment program.

Most on site visits have occurred after the petition was approved; however a site visit may occur as part of the adjudication process, in particular when the case involves an H-1B extension with the same H-1B employer.

Does the FDNS need permission for the visit?

No. FDNS can show up unannounced at any time and does not need your employer’s permission to investigate the work site. In fact, the Form I-129 H-1B application informs the employer USCIS conduct a site visit to verify the accuracy of the information contained on the form.

Where will this visit take place?

At the H-1B employer’s principal place of business, and/or at the H-1B employee’s work location, even if not controlled by the H-1B employer. In other words, if you work off-site for a third-party client on behalf of your employer, the FDNS investigator can inspect the client’s site.

May your employer request legal counsel during the on-site visit?

Yes. If your employer does not have an attorney on site, however, FDNS is not required to wait until one arrives. FDNS officers typically will not reschedule a visit to accommodate the lack of physical presence of an attorney. The FDNS will allow the attorney to participate by phone, if requested.

Who will be involved during the site visit?

The FDNS officer will ask to speak to the employer’s representative who signed the Form I-129 petition. If this person is unavailable, then another employer representative, such as a human resources manager, will be asked to speak with the FDNS officer.

What verification methods can be used?

Per the instructions for the USCIS’ Compliance Review and Monitoring Methods, verification methods may include:

• review of public records and information;
• contact via written correspondence, telephone, the Internet, facsimile or other electronic transmission;
• unannounced physical site inspections of residences and places of employment; and
• interviews

What will happen during the site visit?

The purpose of the visit is to verify information about one specific H-1B petition regardless of the number of H-1B petitions filed by the employer. The FDNS officer should have a copy of the petition.

The officer will interview the employer about its participation in the H-1B program. In particular the officer may request:

• specific information about the company, including, the employer’s business, locations, number of employees and number of H-1B petitions previously filed;
• copies of the company’s tax returns, wage reports, and other company documents to verify that it is a bona fide business;
• confirmation that the signature on the Form I-129 petition is genuine; and
• information about the employer’s immigration counsel.

The employer also will be asked for information about the H-1B employee, including his or her title, job duties, work location and salary. In addition, the officer may also request the H-1B employee’s most recent pay stub and last Form W-2.

Finally, the FDNS officer may also tour and take photographs of the employer’s facility.

Following these interview, officer will normally request to interview the H-1B employee and a manager or colleague of the H-1B employee.

What happens during the interview of the H-1B employee?

As part of the information verification process, the H-1B employee may be asked about his or her:

• job title, duties and responsibilities, employment dates, and location of work;
• position requirements;
• academic background;
• previous employment experience;
• current address; and
• dependents, if any.

How long does this site visit last?

Usually less than one hour, including interviews and facility tour.

What happens after a visit?

If there is any derogatory information, USCIS is supposed to inform the employer and give the employer the opportunity to respond before taking any adverse action such as revoking the H-1B petition. USCIS states that if such information is not provided by USCIS when it issues the adverse action, the employer’s recourse is to request a copy through the Freedom of Information Act (FOIA), which is not a quick process.

What can you do if you suspect a problem during a site visit?

If you or your employer is under investigation, you should consider contacting a competent attorney if you want to ensure your rights are protected under the law.

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.

• Rip you off (e.g. make you pay H-1B filing fees, underpay your wages, etc.)?
• Subject you to abuse (e.g. threaten you with job termination or deportation)?
• Want you to do things that you think are unethical?

If you answered ‘yes’ to one or more of these questions, then you may well have a legal claim against your employer. You may call a lawyer and check into that.

But more importantly, you may want to question why you put up with it, continuing to get slapped by the hand that feeds you.  There are other, more humane, hands out there.

If you are fired, or if you continue to work under poor conditions to the point you can’t take it anymore, you will eventually be forced to find a new employer.

So why not start the job search now, when it’s already clear to you that your H-1B employer is acting against your interests?

I get phone calls from employees all the time who describe legitimate, painful hardships inflicted upon them by their employers.  So then I ask, “Are you looking for a new job?”

Disappointingly, often the answer is “No,” or “Not yet, but I plan on it.”

As these answers show: many employees who are being treated unfairly do not react proactively.  When obvious trouble arises, they do not react by planning for the worst and taking action (searching the job market, talking to an attorney about H-1B transfer requirements, sending out resumes, etc.).

Rather, they spend a great deal of time: (1) internalizing the employer’s irrational criticisms (e.g. “Maybe I really am a lousy employee for complaining about being underpaid, and the employer is right I am lucky they sponsor my H-1B”); (2) futilely trying to correct the employer’s uncorrectable conduct (e.g. “I left five messages with the owner to get me copies of my LCA and H-1B papers.. I’m going to call him again, and tell him how absurd this is!”); and/or (3) avoiding a job search, because they believe it’s impossible to transfer to better employment.

Such self-defeating behavior is sympathetic and understandable.  A conscientious person wants to examine the repetitive criticisms and actions against them, to examine if the criticisms have merit, and if the person can improve things.  This is the natural reaction of a conscientious employee.  But it’s the wrong reaction.

If you encounter unfair conduct and see the writing is on the wall, you should not stick around to endlessly analyze or debate your situation.  Nor should you become paralyzed by self-doubts, such as “There is no way I can get out of this situation, because [fill in the self-defeating blank].”

You HAVE to move on to somewhere else.

The moment you recognize your H-1B employer is acting against your interests, get going with Plan B immediately.  Educate yourself about what can be done to better your situation, and then do it.

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.

Not one to miss a chance to co-opt, I will offer you three words you should NEVER utter in an employment dispute.

There are the three words you should never say to your employer, to a legal investigator, to a judge, .. not even to this guy- your own attorney!

"Please don't say these words." Lionel Hutz

Here are the 3 words:

1. “Liar” (see also variations, “lied”/”falsified”/”fabricated”/”slandered”/”extorted”/etc.).

I know, I know. It’s hard NOT to use this terminology when you feel your opponent IS in fact a “liar.”

Problem is, if you tell people this word, then you are supplying them with their own conclusion (“That guy = LIAR”). They will resent you for it.

For example, say that you (Dude #A) tell a Judge that your opponent (Dude #B) is a “liar.” The Judge does not know Dude #B from Adam. The Judge does not know YOU, Dude #A, from Adam. All the Judge knows is that you are the Dude who is walking around saying that others are “liars.” This makes the credibility of Dude A (you) appear worse than Dude B (the “liar”).

If you want the judge to UNDERSTAND that Dude B is lying, then state the FACTS. As they say, show, don’t tell. Show the facts. You may tell the judge this:

“Dude B stated that the sky is green. I provided him this picture of the sky, which I will introduce as Exhibit A. The picture shows the sky is blue, not green as Dude B states.”

At this point, the decision-making party (judge, investigator, etc.) will make his or her own judgment about what is true. And if that decision-maker decides Dude B is “lying,” then that is THEIR conclusion to make, not yours. Don’t try to force-feed the decision-maker your conclusion.

2. “Incompetent” (see also “stupid”/ “disorganized”/ “ridiculous”/ etc.).

See above.

3. “Unfair” (see also “evil”/”biased”/”discriminatory”/etc.).

See above.

If you are in an employment dispute, the chances are high that things will get emotional, and that you will be tempted to use the words above. Avoid the temptation to use charged words or to supply conclusions. Don’t editorialize. You should discuss things in a polite, factual manner.

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.

The magic questions are these:

1. What Else Can This Mean?

2. Who Can Help Me?

3. What Am I Grateful For?

4. What’s My End Game?

5. What Can I Learn From This?

I won’t cover each question in depth- you should definitely read Mr. Brownson’s article for the descriptions.

But what I will say is that each and every one of these questions are extremely important to ask yourself when you have an employment dispute.

Almost everything written in this blog is an attempt (whether we’re thinking about it or not) to address these fundamental questions.

Here’s one of myriad examples. If you are an H-1B employee and considering whether to file a complaint to the Department of Labor (DOL) about underpaid wages, have you considered Mr. Brownson’s question # 4, “What’s My End Game?”

That is, have you really thought to yourself: “What do I want to accomplish with a legal complaint, and can a legal complaint accomplish this?”

If you haven’t thought about this question, you’d better do so, before you go ahead and file a DOL complaint and face unknown consequences. As Mr. Brownson puts it, “Would you set off in your car with no idea where you were going, why you were going there or when you were likely to get back?”

Probably not. But people do this all the time with legal claims! It is common for people to file a legal complaint first, and then learn how things “end” second. It’s a much, much better idea to reverse this
order. That is, you should learn about the possible “ends” that can occur from filing a DOL complaint, or from any other legal complaint, before you file the complaint and begin the legal process.

As a final note, no matter how bad your employment situation, keep in mind Mr. Brownson’s question #3: “What Am I Grateful For?”  As a blogger and individual trying to make sense of the world, I am grateful
for his post!

From our perspective as workers, we should be grateful- no matter what has happened to us- that at this moment we are alive and have the opportunity to influence our destinies. Whether that means pursuing a legal action, or not pursuing a legal action, is a matter of educating ourselves and making informed decisions. Reading Mr. Brownson’s article and considering the 5 questions will go a long way to educate and
assist us in making such important life decisions.

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.”
• “Will I Be Deported If I Complain Against My H-1B Employer?”

For more 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.