RIGHTS OF H1B/REPORT ABUSE/REPORT FRAUD

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Rights and Responsibilities of H-1B Holders

Contents

How to report an employer to DOL/USCIS

Don’t Get Stuck on the Bench – Your Rights as an H-1B Worker

The skilled temporary worker visa, also known as the H-1B visa, allows foreign nationals with advanced skills to hold jobs in the United States. The top H-1B issuing posts in the world are Chennai, New Delhi and Mumbai, and Hyderabad will probably join these three soon. While the vast majority of H-1B employers and employees are responsible users of the program, there are some that engage in fraudulent and unfair practices. Please review your rights and responsibilities as an H-1B worker, and make sure you protect yourself and your family from financial or legal difficulties.

You have the following rights as an H-1B worker:

You must be paid at least the prevailing wage, as listed on your Labor Condition Application (LCA) form. This, in turn, must be the same rate your employer pays other workers with similar experience and qualifications, without regard to nationality. You must not be “benched,” or have a reduced or suspended wage for non-productive time caused by the employer, or by the lack of a license or permit. You must receive the same fringe benefits on the same basis as offered to American employees. Your employer may not require you to pay, either directly or indirectly, any part of the petition filing fee, administrative fees, attorney fees or any other costs related to the petition. You must not be required to pay a financial penalty for leaving the employer before a date set in the employment contract. You should receive the same working conditions (such as hours, shifts, vacations, etc.) on the same basis and criteria as provided to similarly employed U.S. workers. Your employer must keep records of the hours you work and the wages you are paid. You should keep your own records as well. Your employer may not intimidate, threaten, discharge or otherwise discriminate against any employee, former employee or job applicant for disclosing possible H-1B violations or for cooperating in a compliance investigation. You have the following responsibilities as an H-1B worker:

You must provide truthful and correct qualification documents, such as degrees and experience letters, to immigration authorities throughout the visa process. You should be alert for any possible violations of your rights, as well as violations against colleagues or contacts in the U.S., and avoid those employers. If you leave your employer, regardless of who terminated the relationship, you should leave the United States unless you have filed for H-1B status with a new employer. You may not enter the United States more than 10 days prior to the petition validity date. You must follow U.S. laws and regulations while in the United States. Your spouse and other H-4 dependents may not work while in the United States.


If you wish to report H-1B abuse, please contact the U.S. Department of Labor at 1-866-4US-WAGE or http://www.wagehour.dol.gov/.

How can someone file a complaint against an employer with Department of Labor?

From Attorney Rajiv:

  • If you suspect your employer of H1-B violations, use this form. Please note: The law protects you when you file a complaint (i.e. if your complaint is valid, your H1-B will remain valid even if employer cancels it after you file a complaint).
  • For Recovering unpaid wages, your option is the local State Workforce Agency for the State where you are employed. They will recover your salary and it does not cost you anything.
  • It is illegal for an employer to pay you in cash (or kind) and not deduct payroll taxes.
  • You can transfer. Ask CIS to "forgive" being out of status because this is not your fault. If you want to make your case stronger, file a complaint against the employer for non-payment of wages. Use this form.
  • Not only will you most likely get your full salary for every day, you will also be protected from any problems past or future due to non-payment. Good luck!

Who pays for Fees? Employee/Employer?

Employer needs to pay for H1B fees. If the employee is asked to pay, it is illegal and you can report to DOL/USCS and employer will be in BIG trouble.

I am being asked to sign a Bond/Guarantee. Is that legal?

A contract of employment is a category of contract used in labour law to attribute right and responsibilities between parties to a bargain. On the one end stands an "employee" who is "employed" by an "employer".

Labor Laws are complicated and are often State specific. Understanding the contract before signing is an important first step.

Fair Labor Standards Act

Is charging money for greencard by an employer legal? Does employee need to pay for the greencard?

Greencard process has multiple steps that need to be taken with roles played by Employer and Employee. See here for complete Green Card Process.. Labor and I140 stages are the responsibility of the employer and all charges associated with those two steps have to be borne by them.

My employer is not paying me and threatening me if I report. Is that legal?

It is illegal and you can report and get back all back wages.

DOL link

Must the employer pay the guaranteed minimum hours if no work is provided?

Yes. The employer must pay the guaranteed minimum hours unless the H-1B worker is unavailable for work because of non-work related factors, such as the [B]worker’s own voluntary request for time off[/B], or in other circumstances where the worker is unable to work.

DOL link

H-1B workers must be paid the required wage rate for all nonproductive time caused by conditions related to employment, such as [B]lack of assigned work[/B], lack of a permit, or studying for a licensing exam.

Fact Sheet #62G: Must an H-1B worker be paid a guaranteed wage?

This fact sheet provides general information concerning the payment of wages for an H-1B worker under the H-1B program.

The H-1B employer must pay its H-1B worker(s) at least the “required” wage which is the higher of the prevailing wage or the employer’s actual wage (in-house wage) for similarly employed workers.

What is the prevailing wage?

The prevailing wage is the wage rate set for the occupational classification in the geographical area of employment by:

  • A union contract which contains a wage rate applicable to the occupation; or
  • For an occupation not covered by a union contract, the weighted average of wages paid to similarly employed workers (i.e., workers having substantially comparable jobs in the occupational classification) in the geographic area of employment.

Where can I obtain prevailing wage information?

A common prevailing wage source is the State Workforce Agency (formerly the State Employment Security Agency) operating in each state. Listing of state offices.

What is the employer’s actual wage?

The actual wage is the wage rate paid by the employer to all individuals with experience and qualifications similar to the H-1B nonimmigrant’s experience and qualifications for the specific employment in question at the place of employment. The actual wage established by the employer is not an average of the wage rates paid to all workers employed in the occupation. If there are no similarly employed workers, the actual wage is the wage paid to the H-1B worker.

Can the H-1B worker’s wage be either hourly or salaried?

Yes.

Is there a guaranteed minimum number of hours that must be paid?

Yes. The guaranteed minimum number of hours to be paid for all periods to the H-1B worker is the number of hours that the employer reports on the Petition for Nonimmigrant Worker (Form I-129/I-129W), item 5. The guaranteed pay begins when the worker enters into employment, but in no case later than 30 days after the H-1B worker enters the U.S. to take the job or, where the worker is already in the U.S., 60 days after the H-1B worker is authorized to work for the employer (see WH Fact Sheet #62I).

Must the employer pay the guaranteed minimum hours if no work is provided?

Yes. The employer must pay the guaranteed minimum hours unless the H-1B worker is unavailable for work because of non-work related factors, such as the worker’s own voluntary request for time off, or in other circumstances where the worker is unable to work.

If an H-1B worker is paid less than the required wage rate (the higher of prevailing or actual wage), does the program provide for any recovery of the required wage?

Yes. The Department of Labor’s Wage and Hour Division enforces the H-1B wage provisions and has the authority, after an opportunity for a hearing, to order the employer to pay the required wage rate.

Are H-1B workers covered by any other Federal wage requirements? Yes. Other Federal wage statutes apply to H-1B workers in the same manner as any U.S. worker.

Where can I obtain further information?

For more information, you may contact the nearest Wage and Hour Division office listed in most telephone directories under U.S. Government, Department of Labor, Employment Standards Administration. The Department of Labor also has a web site dedicated to immigration programs, including the H-1B program. This site contains links to a press release pertaining to the regulations, and to the Labor Condition Application, Form ETA 9035 and/or ETA 9035E.

All requirements listed above can be found in 20 CFR § 655 Subparts H & I and the Immigration and Nationality Act § 212(n).

Where To Obtain Additional Information

This publication is for general information and is not to be considered in the same light as official statements of position contained in the regulations.

For additional information, visit Wage-Hour website: http://www.wagehour.dol.gov and/or call Wage-Hour toll-free information and helpline, available 8am to 5pm in your time zone, 1-866-4USWAGE (1-866-487-9243).

U.S. Department of Labor Frances Perkins Building 200 Constitution Avenue, NW Washington, DC 20210


1-866-4-USWAGE, TTY: 1-866-487-9243

Fact Sheet #62I: Must an H-1B employer pay for nonproductive time?

This fact sheet provides general information concerning the payment for nonproductive time under the H-1B program. H-1B workers must be paid the required wage rate for all nonproductive time caused by conditions related to employment, such as lack of assigned work, lack of a permit, or studying for a licensing exam.

No payment is required under the H-1B program for nonproductive time due to reasons not related to employment, such as a worker’s voluntary absence from work or a hospitalization, etc. Employers, however, remain obligated to comply with the Immigration and Nationality Act or any other statute relating to employment (such as the Family and Medical Leave Act).

When does the obligation to pay for nonproductive time start?

Non productive pay requirements begin with the earliest of the applicable following events:

  • The H-1B worker “enters into employment” with the sponsoring employer, which occurs when the worker first makes him/herself available for work or otherwise comes under the control of the employer, such as reporting for orientation or studying for a licensing exam;
  • No later than thirty (30) days after the H-1B worker is first admitted into the U.S. pursuant to the H-1B petition, whether or not the H-1B worker has “entered into employment”;
  • No later than sixty (60) days after the date the H-1B worker becomes eligible to work for the employer (the approval date found on the U.S. Citizenship and Immigration Services (USCIS) (formerly the Immigration and Naturalization Service) Notice of Action, Form I-797), whether or not the H-1B worker has “entered into employment”; or
  • For an H-1B worker already in the United States (see WH Fact Sheet #62W), on the date of the filing of the Petition for a Nonimmigrant Worker (Forms I-129/I-129W) by the sponsoring employer under the portability provisions (see 8 U.S.C. § 1182(n)).

How much nonproductive pay is due and for what number of hours?

  • Full-time salaried workers must be paid the full amount of the required wage rate;
  • Full-time hourly workers must be paid for 40 hours or such other number of hours as the employer can demonstrate as full-time employment for its hourly employees;
  • Part-time workers must be paid for at least the number of hours indicated on the Forms I-129/I-129W petition and incorporated by reference on the Labor Condition Application (LCA) (Form ETA 9035 and/or ETA 9035E); and/or
  • Part-time workers with a range of hours listed on the Forms I-129/I-129W must be paid for at least the average number of hours normally worked, provided the average is within the range indicated. In no event should the worker be paid for fewer than the minimum number of hours indicated for the range of part-time employment.

What rate of pay is used for nonproductive time?

Nonproductive time must be paid at the required wage rate for the occupation listed on the H-1B worker's LCA (see WH Fact Sheet #62G).

When does the obligation to pay for nonproductive time stop?

Payment for nonproductive time is not required after a bona fide termination of employment. The best evidence of such termination is the employer's notification to the USCIS that:

  • The employment relationship has been terminated;
  • The Petition should be cancelled; and
  • The employee has been provided with payment for transportation home where required by USCIS regulations.

All requirements listed above can be found in 20 CFR § 655 Subparts H & I and the Immigration and Nationality Act § 212(n).

Where To Obtain Additional Information

This publication is for general information and is not to be considered in the same light as official statements of position contained in the regulations.

For additional information, visit our Wage-Hour website: http://www.wagehour.dol.gov and/or call our Wage-Hour toll-free information and helpline, available 8am to 5pm in your time zone, 1-866-4USWAGE (1-866-487-9243).

U.S. Department of Labor Frances Perkins Building 200 Constitution Avenue, NW Washington, DC 20210

1-866-4-USWAGE, TTY: 1-866-487-9243

How do I report a bad immigration lawyer?

http://immigrationvoice.org/wiki/index.php/HOW_TO_REPORT_A_BAD_IMMIGRATION_LAWYER
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