Benched or Underpaid H-1B Wages? The Importance of Acting Promptly

On behalf of Peterson, Berk & Cross, S.C.

Dec 08, 2009
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If you’re an H-1B worker who has been benched or otherwise underpaid wages, and you’re interested in trying to address your problems, you should consider acting promptly. Promptly educate yourself about the legal options you have, and promptly take action. If you take the right actions at the wrong time (i.e. after too much delay), they can become the wrong actions.

This post describes the benefits of taking action promptly.

An underpaid H-1B worker can (as described in our other blog posts) take several actions, including : (1) consulting with an H-1B rights attorney about legal rights and options; (2) trying to negotiate with the employer, with or without an attorney, to try to obtain unpaid wages or settlement; (3) filing a legal complaint with the U.S. Department of Labor (DOL); and/or (4) filing a complaint in U.S. federal court.

These are each serious actions and decisions to make, which should not be rushed. You should educate yourself before jumping into any decision.

However, the fact these decisions are important and take time to research, does NOT mean that every H-1B worker has many months to make decisions, or can afford a wait-for-a-rainy-day-when-I’m-comfortable approach.

Here are the reasons why H-1B workers should be prompt and diligent in taking action:

  • Legal deadlines apply.

Do you know all your deadlines? Are you sure? If you fail to meet a legal deadline (e.g. the deadline for a wage complaint), then your ability to pursue your rights (e.g. to file a wage complaint and try to get your unpaid wages) are likely forever lost.

  • Government audits of H-1B employers are on the rise- rather than the government, you (or your attorney on your behalf) should be the first to knock on your employer’s door and tell the employer it is violating your legal rights.

As this blog has mentioned, the U.S. government has increased its audits (including random audits) and investigations of H-1B employers.

Unfortunately, in at least one well-publicized instance of a fraudulent H-1B employer, the government considered some of the employer’s H-1B workers to also be responsible for legal violations. Shouldn’t you find out as soon as possible if your H-1B employer is asking or having you do things that are unlawful, and to inform the employer of your objections to being asked to do illegal things? An H-1B worker who has written the employer about such objections or pursued legal action will have a greater comfort level during a government audit than the H-1B worker who sat through the violations silently.

  • Delays by benched workers to take action can be looked upon unfavorably by DOL and/or USCIS.

You may need assistance from DOL or USCIS at some point in the future, and their willingness and ability to assist you could be affected by your delays now.

As you read this right now, perhaps you are on the bench without pay. Or maybe you are working for $7 per hour, when your LCA requires $20 per hour.

You may be hoping to transfer your H-1B to a new employer, which requires the approval of USCIS.

You may also be considering filing a wage complaint with DOL.

If you are hoping to someday transfer (via USCIS procedures), or to pursue unpaid wages (often done via a complaint to DOL), you should know that delay on your part can hurt your chances to successfully pursue either of these actions.

If you eventually file a DOL complaint for unpaid wages or seek a transfer via USCIS, one fact either government entity is likely to consider is your diligence in pursuing your legal rights.

An H-1B worker who sits on the bench quietly for 18 months, without saying anything to the employer about unpaid wages or other concerns, may find DOL or USCIS skeptical of the worker’s efforts to fix his or her benching problems and/or to find legitimate work.

On the other hand, a benched worker is much more likely to be viewed as reasonable by DOL or USCIS if the worker consulted with an attorney, learned about his or her H-1B rights, contacted the employer (through an attorney or on his or her own) to complain and try to obtain unpaid wages, and, if necessary, pursued a legal complaint within a reasonable time.

These efforts by the H-1B worker- to promptly, proactively, and appropriately (i.e. via showing awareness and respect for the laws involved) address the employer’s wrongdoing- can help DOL and/or USCIS view your situation more favorably, and help them to consider a decision in your favor.

By acting promptly and appropriately, an H-1B worker (especially with the assistance of an H-1B rights attorney) can dramatically improve his or her situation, both in terms of securing payment and improving his or her position before the government to obtain a lawful H-1B transfer.

On the other hand, if you have been waiting and hoping without taking any action (e.g. eight months on the bench without pay), and you continue to wait and hope, why do you expect that continued delay will make your case or life any better?

Additional Information

For more H-1B employee rights information, please visit the blog’s main page athttp://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:

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.