H-1B Workers Fight Back
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:
An H-1B worker can seek compensation in the following circumstances:
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.