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< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly

H-1B Workers Fight Back
by David J. Hart

The much-publicized slowdown in the U.S economy has resulted in thousands of employee layoffs and dismissals across the country. The greatest impact to date has been in the technology and telecommunications sectors, which have in recent years relied heavily on the use of H-1B specialty occupation workers.

H-1B workers are restricted to employment with their H-1B petitioner, that is, the company or entity that "sponsors" them for work in a specific location (or locations, if the company has far-flung clients and projects.)

The economic downturn has put so much financial pressure on H-1B employers that some are cutting corners and failing to follow regulations once they have hired their nonimmigrant H-1B employees. The extent of the problem is unclear. Still, based on several interviews with foreign nationals, some employers are "benching" their H-1B workers, which means not paying them for non-productive time in between projects. In some cases, H-1B workers have arrived in the U.S to begin work, and have neither worked nor been paid at all for months. It may be that these employers flout the regulations with a sense that workers may feel too intimidated to complain to authorities.

Also, there is evidence that some employers are paying less than the required prevailing wage. Further, during this period of widespread dismissals, many H-1B workers are getting less notice of their lay-off and much smaller severance packages than their U.S colleagues.

All of this seriously contravenes federal regulations. Although some of the dismissed H-1B professionals are lucky enough to get other job offers, many others are in a precarious situation. They not only unfairly and illegally lose income, but also may be in jeopardy of losing their visa status and facing removal from the country if they are out of status. This would likely also impede their future immigrant petitions and applications (such as Adjustment of Status to Lawful Permanent Resident.)

H-1B employers have numerous obligations prescribed by the U.S Department of Labor (DOL) and the Immigration and Naturalization Service (INS). Both agencies take these obligations very seriously not only to protect H-1B workers, but also US workers. These responsibilities are contained in the Labor Condition Application (LCA), a form submitted to the DOL for certification, which is a prerequisite to the INS approving an H-1B petition. Employers must agree to the following four statements as per 20 CFR 655.731 et seq:

  1. Wages: Pay non-immigrants at least the local prevailing wage or the employer's actual wage; whichever is higher, and pay for non-productive time. Offer nonimmigrant benefits on the same basis as US workers.
  2. Working Conditions: Provide working conditions for non-immigrants that will not adversely affect the working conditions of co-workers similarly employed.
  3. Strike, Lockout, or Work Stoppage: There is no strike or lockout in the occupational classification at the place of employment.
  4. Notice: Notice to union or to workers at the place of employment. A copy of the certified form is given to H-1B workers. Also, the employer must post notice of the LCA filing in two conspicuous locations at the work site.
Once certified by the DOL, the LCA must be kept by the Petitioner in a "public access file," which should also contain the following:
  1. Documentation of the wage to be paid to the H-1B employee;
  2. Explanation of how the wage was established;
  3. Copy of the prevailing wage determination from the State Employment Security Administration (SESA), or survey, or other accepted method to determine the prevailing wage for the geographic location;
  4. Copy of notice to the labor union, if any; and
  5. Copy of the benefits plan that indicates the H-1B employee receives the same benefits as the other similarly employed workers.
Employer mistreatment will mostly only come to light if workers themselves file complaints. Workers should know that their visa status is irrelevant to filing a claim against a current or ex-employer. Further, once company officials are aware of the claim, the "whistleblower" provisions in the US immigration law prohibit them from intimidating or threatening claimants.

An H-1B worker can seek compensation in the following circumstances:

  1. If he/she was, or is being, paid a wage that does not meet the prevailing wage as listed on the LCA, which was filed with the H-1B petition;
  2. If he/she was, or is being, paid a wage that conforms to the LCA, but he/she is or was physically employed in another location where the prevailing wage is/was higher than the wage listed on the LCA;
  3. If payment of the wage is being, or was, suspended for any period of time due to lack of work, even though the H-1B visa was not withdrawn or revoked;
  4. If he/she was not paid the offered wage within 30 days of INS approval of the H-1B petition, or from the date of reporting to work, whichever is earlier;
  5. If he/she was laid off from work and has evidence that he/she received less severance pay or other compensation than the company's other dismissed workers.
It is generally accepted that the DOL investigates such claims, which is usually sufficient impetus to force a recalcitrant employer into reviewing its payroll reports and employee activities. Employers found to be contravening the regulations can be fined and forbidden from hiring H-1B workers, a significant sanction for firms that often use, or are dependent on, H-1B employment.

It is also important to note that other H-1B workers at the company likely have suffered similar treatment, which adds weight to an individual's claim. A negotiated settlement is the desirable result, which would mean reaching an agreement with the employer for the payment of back wages and costs. This effort to reach an agreement would precede any action on the part of the aggrieved ex-employee in initiating a request for a DOL investigation.


About The Author

The author is an immigration attorney with offices in Miami, Florida, and Boston, Massachusetts. His law firm, David J. Hart P.A., Immigration Attorneys, has a web site, www.h1backpay.com, which addresses the H-1B issues. Mr. Hart also has a general web site at www.immigrateusa.com and hosts a Spanish-language immigration web chat every Wednesday at 6 p.m. (Eastern Standard Time) at www.us.starmedia.com.



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