H-1B employees who have been benched without pay or underpaid often are reluctant to complain against their employers because they fear they will be fired and lose their immigration status.
This fear is understandable, but exaggerated. This article will explain why complaining can actually help preserve your status in the United States.
The Relationship Between Maintaining Status and Changing or Extending Status
As H-1B employees know, to extend their H-1B status or to change to another status such as a student visa while remaining in the United States, they must prove they have been maintaining their H-1B status. For H-1B employees, the proof they have maintained status is normally pay stubs. If an H-1B employee has been fired or benched, he has no pay stubs to submit to prove he has been maintaining his status. In addition, the employer may have notified USCIS it wants to revoke the H-1B approved petition.
If the H-1B employee cannot prove he has been maintaining his status, he must leave the United States and await USCIS approval of the new H-1B employer, student visa status or other visa status, then apply to re-enter the United States. Because leaving the United States can create complications for visa holders and comes with the risk of being denied re-entry, many H-1B employees prefer to change or extend their status while remaining in the United States.
Can You Save Your Status If Fired For Complaining?
H-1B employees who are afraid they will jeopardize their status if they complain, will be relieved to know that even if fired, they may not have to leave the United States to change employers or to another visa status. The laws provide protections from retaliation by employers when H-1B employees complain about their legal rights. In particular, Department of Labor regulations at 20 CFR 655.801 and a USCIS policy memo support arguments that termination in retaliation for complaining about Labor Condition Application (LCA) violations, such as unpaid wages, may be deemed an extraordinary circumstance enabling a change or extension of status.
USCIS provides this protection against retaliatory termination because it wants to encourage H-1B employees to report their employers' violations and to cooperate in investigations against employer violators. (This type of protection is know as "whistleblower" protection. In many cases, the law protects people who inform the government about others who violate the law.)
Depending on the situation, USCIS may approve a change or extension of status so that the H-1B employee may remain in the United States even if terminated for complaining about employer violations. Specifically, the USCIS policy memo to its staff reads:
USCIS adjudicators are instructed that, if credible documentary evidence is provided in support of an H-1B petition that the alien beneficiary faced retaliatory action from his or her employer based on a report regarding a violation of INA § 212(n)(2)(C)(iv), then USCIS adjudicators may consider any related loss of H-1B status by the alien as an "extraordinary circumstance" as defined by 8 CFR 214.1(c)(4). This process may allow the alien additional time to acquire new H-1B employment and remain eligible to apply for a change of status or extension of stay notwithstanding the termination of employment or other retaliatory action by his or her employer.
The USCIS policy memo instructs its staff to consider whether an H-1B employee was terminated in retaliation for complaining about his employer's violations of H-1B regulations or for cooperating in an investigation against an H-1B employer accused of violating the law. In determining whether an H-1B employee would be protected under this provision and be permitted to change or extend his status while remaining in the United States, USCIS looks at several issues, including whether the H-1B made a complaint against the employer.
So, contrary to many H-1B employee's concerns, complaining about an employer who violates the law may actually help you maintain your immigration status, rather than cause you to lose it. Please note that this protection is not guaranteed, however. USCIS' decision to accept or reject this argument is in its sole discretion. Even if you think you qualify for this protection, USCIS could disagree and deny your change or extension of status.
While this protection is not guaranteed, the attorney-authors have successfully obtained extensions and changes of status for our clients who have complained against employer violations and whose jobs were terminated. Whether you are a good candidate for referencing this regulation against retaliatory termination depends on the circumstances of your case. A key factor in being able to take advantage of this protection under the law is the complaint. The complaint against your employer must be done in the proper manner. If not, you increase the chance USCIS will deny you protection.
Before Acting, Talk to an Attorney
Because every person's situation is unique, if you have not maintained status, even if you believe it was not your fault, you should immediately seek competent legal advice before taking any action to determine all the legal options, and the best strategy, for your particular situation.