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.

If you are a worker in a dispute — whether it’s a dispute with your current employer’s management, a dispute with your former employer about unemployment benefits, etc.– there is something important you should know.

Regardless of what the employer may have done wrong, YOU are probably the person who is under the most scrutiny, and who has the most to lose. That is, you are probably the one on the hotseat.

For example, if you are subject to a disciplinary meeting or grievance process at work, it may well be that the discipline is unfair.  However, the nature of that sort of proceeding (whether the discipline is fair or not) is to decide whether YOU did something wrong.  That sort of proceeding is NOT a proceeding to determine whether others (coworkers, management, etc.) did something wrong. You are on the hotseat, not them.

Similarly, in an unemployment hearing, it is usually the judge’s job to decide whether the WORKER did something wrong.  Whether the worker committed misconduct or not, whether the worker quit without good cause or not, etc.  It is usually not part of the unemployment judge’s function to decide whether the employer did something wrong.  So again, YOU would be on the hotseat, not the employer.

If you are in a dispute at work or in a legal proceeding, before you make any assumptions or take any actions, ask yourself this: “Who is on the hotseat here?”  That is, ask yourself what the purpose of the proceeding is– to examine YOUR wrongdoing or the employer’s.

Chances are, the proceeding is geared to investigate your wrongdoing.  Chances are, you are the one on the hotseat.  If you are not sure who is on the hotseat, then don’t make any assumptions, and talk to an attorney.

If you are in fact the one on the hotseat, then it is very important you know this: the worst thing to do while on the hotseat is to blame others for their wrongdoing. If you’re accused of starting a fire (falsely or not), then that is not a good occasion to talk about others’ tax fraud.

For a more common example, if you are in a disciplinary meeting with management, you should not speak during that occasion (i.e. a proceeding for which you are on the hotseat and being reviewed for accusations against you) about what other people did wrong, about how you are being disciplined unfairly, etc. The hotseat is not the place to cast blame from. Because of the context, people in authority will be suspicious of what you have to say, and think you are playing the blame game; that you are being defensive and trying to divert attention from yourself.  If you case blame from the hotseat, it will only make people more upset, and more inclined to take action against you.

So what DO you do while you’re on the hotseat?  Three things.  First, you LISTEN.  Second, you ANSWER. (If no one asks you a question, then you don’t say anything).  Third, when you have to answer, you SPEAK WITH FACTS.  Fact-talk is talk like this: “On June 1, the sky was blue.”  Blame-talk is like this: “Manager Smith was being unfair and lying when he said the sky was green. That’s ridiculous.  Why are you giving me discipline, when he’s the one that’s wrong?  Management has not given this matter a fair investigation.”

Hopefully, what I’m saying gives you pause.  Hopefully, you’ll give thorough thought to whether you’re on the hotseat, and if so, you’ll take great care not to cast blame.

If you have any doubts, talk to an employee rights attorney to sort it out before you say or do something that may make the hotseat hotter!

Some H-1B employees, without the assistance of attorneys, decide to file complaints with the Department of Labor (DOL) to pursue their unpaid wages. Some workers have better results than others.   Results often vary, based on a worker’s level of preparation and understanding about the DOL complaint process and rights under the laws and regulations.

If you are considering filing your own DOL complaint, protect yourself and your rights by ensuring you are presenting your best case. In this article, we discuss key areas for do-it-yourself filers, such as meeting filing deadlines, identifying all of the claims you may have, and putting together your best case.

Did you already miss the filing deadline?

DOL requires complaints be filed within one year of the occurrence of the employer’s last H-1B regulation violation. This deadline is very strict. Even one day late is too late. This means if today is April 30, 2012, and you were last underpaid May 1, 2011, you can still file a DOL complaint, but if you were last underpaid April 29, 2011, it’s possibly too late and your DOL complaint may be rejected as untimely.

We say this example would “possibly” be too late because a closer look at the situation may reveal that violations have been continuing longer than the worker thought, enabling him or her to file a timely DOL complaint. For example, for an H-1B employer’s liability for your wages to end by a job termination, you must have been properly terminated. H-1B workers who have been on the bench with an H-1B employer may not be sure whether or when they were formally terminated from the job.  Under the law, for an H-1B employer to properly terminate an H-1B employee and be relieved of wage liability, the H-1B employer must fulfill three key requirements, The H-1B employer must: 1) Notify the employee he is terminated; 2) Notify USCIS of the termination; and 3) Provide the employee with payment or means for return transport back home. If your employer claims it fired you but has not fulfilled all three conditions, you may not be terminated yet, and you may still be able to file a timely DOL complaint.

On the flip side, are you sure you started your H-1B employment and maintained an employee-employer relationship so that your employer is indeed liable for unpaid wages? An H-1B employer’s wage liability ends when the H-1B employee voluntarily leaves employment. If you were benched from the first day of your new job, and never maintained contact with your employer, you may be deemed to have voluntarily left your employment shortly after joining, so in that event your filing deadline may have since long passed.

As you can see, determining whether you are meeting DOL’s filing deadline depends on the unique facts of your situation. So whether your initial assumption is that you do or don’t meet the deadline, you will want to thoroughly review  the factors above, and check if your assumption is accurate.

Please note that even if you miss the DOL deadline, you may have other legal options for pursuing your money. For example, you may also have claims under state and federal laws, which often have longer filing deadlines than the 1-year DOL complaint deadline. Don’t give up hope if you missed the DOL deadline. If you want to see if you have other options, contact a competent attorney in this area of law to discuss your situation.

Did you claim all of your potential wages and other damages going back to day one?

Some H-1B workers who file DOL complaints confuse the DOL-filing deadline period with the period within which the worker can recoup unpaid wages. Your complaint must be filed with DOL within one year of the employer’s last violation (e.g. filed within one year of the last date the employer underpaid wages).  If the complaint is timely filed, however, then the period within which wages can be recovered is often longer than one year. In many cases, an H-1B worker can pursue unpaid wages dating back more than one year, sometimes stretching back 2-6 years or longer.

For example, say an H-1B worker’s last date of underpaid wages (and last employer-violation) was May 1, 2011, and the worker filed a DOL complaint on April 30, 2012, so the complaint just met the 1-year filing deadline period.  If DOL finds that the employer underpaid the worker on May 1, 2011, then DOL would likely investigate for potential wage violations before that date, possibly back to the first date of underpayment.  Under applicable law, in this scenario DOL could find wage violations dating back to the first date of underpayment, and could award the H-1B worker wages for that entire time.

When completing a DOL complaint form, an H-1B worker should consider including a description of all unpaid wages and violations, no matter how far back those violations or unpaid wages may go.  After DOL receives the complaint, DOL would then determine whether the complaint is timely, and how far back in time the employer’s wage liability may extend.

Did you identify all of your claims?

The WH-4 Form has a checkbox list of potential claims. Did you check all that apply to your situation? Unpaid wages is a common box and claim to select, but workers may overlook other claims.  Did your employer make you pay for H-1B fees? Or fail to offer you the same benefits as other employees? Or, make unlawful deductions from your wages? There are numerous violations your employer may have committed in addition to underpaying you. If you missed identifying any potential claims, you may be allowing the employer to keep money it wrongfully took. Be sure to fully review your situation and make sure you have identified all of your potential claims in your complaint.

Did you provide the best evidence?

The strongest complaints are the ones supported by evidence.  A do-it-yourself filer may be inclined to write DOL a lengthy letter, detailing all the bad acts the employer did.  However, some of the employer’s actions (while bad) may not be a type of unlawful action that DOL can review or make a decision about, and DOL may consider such peripheral issues to be irrelevant or even harmful to your case.

For those wrongful acts that are important — such as underpayments of wages, failures to reimburse visa fees or other lost money– consider providing proof or evidence of those wrong acts (e.g. provide a copy of paystubs showing improperly low pay rate, or copy of check stub for unreimbursed visa fee you paid, etc.). Failing to provide evidence can make DOL’s job more difficult and slow down your complaint processing, or worse, could even cause you to lose your case. Without evidence, DOL is compelled to contact you and the employer to request information, which will delay your case until (if and when) that information is received.

Protect your rights, and consider including evidence of each of your claims. For example, for unpaid or underpaid wages, key evidence would be a copy of your LCA and copies of your W-2 or pay checks to show the underpayment. In your claim letter to DOL, you could then explain what these documents show- that the LCA required your employer to pay a required wage, but your W-2 and/or pay stubs show you were paid less, in violation of the regulations.

Should you have an attorney review your complaint?

Preparing a DOL complaint requires intensive research, work and attention to detail. Failure to fully explore all of the issues and identify all of your potential claims may end up leaving you under-compensated for losses, or worse, with a rejected complaint. If you plan on filing your own complaint, consider having a competent attorney review your complaint documentation. An attorney review will help identify whether you are timely and eligible to file the complaint in the first place, and whether you identified all of your potential claims, calculated all of your compensable unpaid wages and other damages, and provided helpful evidence to support your claims.

Attorney reviews of complaints are less expensive (and some attorneys may offer a free review service) than full-service representation, enabling you to save on legal fees, but give you some peace of mind you are preparing the best case you can with the resources and options available to you.

The attorney-authors are willing, at no charge, to review your DOL complaint, whether in draft form or already submitted to DOL, and have a brief phone discussion about the complaint.  (Click here if you’d like more information about our free DOL complaint review process).

We have found that many H-1B workers (whether they have read our blog or not) are aware that a WH4 complaint can be pursued at DOL as a way to seek unpaid wages.

However, some H-1B workers who are past the 1-year deadline for a WH4 complaint may assume they have lost their chance to pursue unpaid wages.

Please know that often this is not the case.  There often are options an H-1B worker can consider when the unpaid wages were earned more than one year ago.  For example, several Federal and State laws (unlike the H-1B regulations and WH4 process) allow deadline periods of 2-6 years to pursue unpaid wages.  So, if an H-1B worker’s employer had failed to pay wages that were due more than a year ago, that worker– while not having options at DOL per the WH4  complaint process– may well have options under other Federal or State laws.  The attorney-authors of this blog can speak to this firsthand, as we have represented H-1B workers in several legal actions with legal claims seeking wages owed from several years prior.

The take-home points for you, as an underpaid H-1B worker, are these: (1) if you’re owed wages from more than one year ago, don’t assume you are beyond all legal deadlines to pursue those wages, unless a competent attorney tells you that following a consultation; and (2) if you are interested in a potential legal complaint, promptly have an attorney evaluate your situation, potential legal claims, and deadlines.  The longer you wait, the more likely it is that all applicable legal deadlines will pass.

Many underpaid workers who take action without an attorney are unsuccessful. There are a number of reasons for this, not all of which we’ll discuss in this article.

But one big reason underpaid workers fail to obtain their wages is this: they do not know that obtaining unpaid wages is a process.

You cannot expect unpaid wages to be paid to you until the required process has been completed.  Much like a baby cannot be born unless and until a process (namely, pregnancy) has taken place, as well as the related passage of time needed for that process (often, close to 9 months), and the related work (addressing medical needs, dietary and physical needs, etc.).

Do you know all the different processes that could lead to you obtaining your unpaid wages?  Do you know all the potential risks and benefits of pursuing each process (and are you SURE about that)? Do you know which process is the best one to pursue?  Do you know how much time that process is likely to take, and all the work/tasks that are necessary for that process?

If you don’t have good answers to these questions, an experienced wage attorney will.  That’s not to say you must retain an attorney, or that you must pursue any particular process.  But if you fail to realize there IS a process involved with an unpaid wage matter, and fail to consider the questions above, then you are less likely to be successful in obtaining your unpaid wages and otherwise achieving what you want to.

This article discusses the fact that benched H-1B workers often do not retain an attorney to help them because they could not find a competent attorney in their local area.  It’s understandable if you first look for an attorney in your geographical area.  There are potential advantages to that, including, of course, the ability to meet in person more easily.

However, H-1B workers with wage and employment problems should not limit your search to ONLY local attorneys.  Here are some reasons why:

- Often, attorneys with the most relevant experience for important issues (e.g. wage-and-hour law expertise, H-1B- law experience, class-action experience, etc.) are niche attorneys who are relatively limited in numbers. It may turn out no attorney competent in your legal problem exists in your area.  However, there may be qualified attorneys who are not local to you, and who would be willing and able to assist you.

- Several (and sometimes all) of the legal claims involved with H-1B wage matters are Federal-law matters, and do not require an attorney to be licensed within a given State in order to assist you.  The attorney-authors of this blog have successfully represented clients in Federal-law matters in States other than our own.

- If you retain a “main” attorney who is outside your State, that attorney may be able to find an additional attorney who IS in your State, and who can assist as co-counsel with any State-law issues or any local issues you find important.

- If you take legal action, most issues do not require travel or being at a particular location.  Most legal work occurs via online communications, in writing and over the phone. In-person meetings or travel are not being required for the most part.  The blog authors have represented persons where we did physically meet them, although we, of course, frequently interacted via phone, Skype conference call,  email, etc.

We hope this article is informative about the issue of whether a local attorney is needed and when you should consider engaging an attorney located in another city or State.  The only way you can know for certain whether an attorney located elsewhere will effectively serve your needs is to contact the attorney and ask if there are any potential concerns with the working from a distance.  That attorney should be able to tell you of any potential problems or potential solutions to any concerns.

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.

Common threats by underpaying H-1B employers include:

• Threatening visa status; for example, by the employer threatening to terminate the H-1B worker and report to USCIS if the worker complains about underpaid wages.

• Threatening legal action based on liquidated damages provisions in employment contracts (e.g. a clause saying the worker owes $10,000 if s/he leaves employment under two years).

• Threatening it will sue the worker for phony “expenses” the employer says are owed.

• Bringing the worker’s relatives into the situation by pressuring them or the worker to take actions that are unfair to the H-1B employee and help the H-1B employer.

These threats can be scary– and, at times, are very effective.  Especially if an H-1B worker, because of the threats, fails to take action (e.g. fails to complain about underpaid wages or fails to apply for new jobs elsewhere).

But if an H-1B worker who is threatened by an underpaying employer consults with an attorney who is well-versed in H-1B and employment rights, the worker may learn of ways to turn the tables against the employer.  He may learn that the employer– despite making threats– is in fact in a position of legal weakness, and faces potential problems and risks that are far worse than those threatened against the worker.

In the blog authors’ legal practices, we have seen scenario after scenario where an H-1B worker (1) was underpaid, (2) was threatened by the employer, (3) contacted an attorney (this is a key part– whether it means contacting us, or another competent attorney!), (4) learned of legal options and ways to deal with the threats, (5) once educated about options, took appropriate legal action, and (6) obtained a result in which the employer paid substantial money for unpaid wages, and dropped the threats– a 180-degree turn from where things were before the H-1B worker sough legal advice.

An attorney who is competent in H-1B rights matters can assess a threatened H-1B worker’s situation, and make him or her aware of leverage and opportunities that the threatened worker never knew to exist.  The key is that workers make contact with an attorney, and educate themselves about legal rights and options, before trying to handle matters on their own.  If an H-1B worker fails to take any action because he fears the threats, or takes the wrong actions because he does not understand the appropriate laws, rights or options, then the threatening H-1B employer is more likely to get away with its conduct.

Many employees engaged in employment disputes believe that the truth will set them free.  That once the employer, or the legal system, finds out the employee is factually correct or “in the right,” then everything will work out in the employee’s favor.

This view, while understandable, is flat wrong.  More often than not, the truth does not set an employee free from their dispute.

Consider this.  Say a given person is diagnosed with cancer.  In most instances, such a person would probably (1) recognize he was in a severe situation; (2) seek the assistance of a professional (e.g. doctor, etc.); (3) undertake steps to best deal with the situation (e.g. treatment); and (4) recognize that those steps would improve the ODDS of a successful outcome, but would not be a guarantee.  Accordingly, the person would recognize the situation to be one that involved risk, and that required careful attention to how it was managed.

All of the same factors apply in a legal dispute.  The unfairness, or untruth, of your situation will not cause matters to resolve in your favor. There is risk involved with your situation, however right you may be, and how your situation works out depends in large part on the (careful) steps you take, and a number of factors involved.

The truth is just one factor, one variable, in a legal dispute.  Other variables include, but are not limited to: what other witnesses will say (i.e. their “truths” asserted), what documentation supports your case, the employer’s level of wealth and leverage, the legal resources available (e.g. whether you can get an attorney, whether a legal claim exists or doesn’t exist for your situation, however unfair, etc.), the timing of your matter (e.g. whether you are beyond a deadline), the particular legal authority you’re dealing with (e.g. the particular unemployment claims adjudicator, judge, jury) and so on.

I don’t write all this to be pessimistic.  Often, employees DO have good legal claims and successful outcomes in employment disputes.

However, if you hold the mistaken assumption that the truth will set you free, and you ACT based on that assumption– for example, if you give your employer or an unemployment adjudicator an earful about how “right” you are– you will find out the hard way how insufficient the truth is in the employment-law world.