A large portion of the H-1b employees do not know their rights and responsibilities while working in the United States and unaware of laws that protect them.
In recent years, my office received many complaints from H-1b employees, particularly in the Information Technology field, who reported abuse by their employers. The complains generally surround not being paid of placed on assignments (benching) or not being provided the necessary information and documentation to make the H-1b transfer. Being foreign employees, they are often afraid to report their employer’s violation, and many of them stayed in abusive working environment without recourse. This article seeks to outline the rights and responsibilities of H-1b employees in the United States and welcome everyone to share this information with H-1b status holders or interested applicants of H-1b status.
What rights do I have as an H-1b employee?
You have the right to get a copy of the Labor Condition Application.
The Labor Condition Application (LCA) is a document filed by your employer to Department of Labor that confirms the terms of your H-1b employment. The LCA is filed online and is certified by Department of Labor. Although the employee does not have the right to other documents associated with the H-1b petition, they must be provided a copy of the Labor Condition Application upon request. If you are curious about the wage level that the employer must pay for you, also known as the prevailing wage, you should request a copy of the Labor Condition Application from your employer.
You have the right to be paid the prevailing wage.
H-1b employees have the right to be paid the prevailing wage by their employer. The prevailing wage is the medium range salary within similar geographical area for similar positions. If an employer underpays the H-1b employees, it is considered a serious violation which can result in the employer’s inability to sponsor H-1b employees in the future. Also, a common practice in the IT field is benching. Benching occurs when the employer stops paying the H-1b employee because there is “no work” during low season. Benching is also a violation of law and H-1b employees should complain to Department of Labor in order to be able to transfer a benched H-1b petition to a new employer. It is important to note that without a complaint to Department of Labor, USCIS may require the benched employee to re-enter the United States to re-activate their H-1b status when they file to transfer to a new employer, which means additional cost and uncertainty with the H-1b transfer and unnecessary delay.
You have the right to have another employer take over your H-1b petition.
Should a new employer file a transfer H-1b petition for you, you are allowed to move employment to the new employer without the consent of your current employer. However, in the IT community, H-1b employees are sometimes made to sign non-compete contracts that prevents them from being able to work for other employers. My office urges H-1b employees with non-compete clauses in their contracts to speak to an employment law attorney who is experienced with non-compete clauses because many of them might be deemed unenforceable. Non-compete clauses are governed by State law, so it is important to discuss enforceability with employment law attorneys in your state.
You have the right to have your employer pay for expenses associated with your return to your home country if employer terminates your employment before your H-1b end date.
Many H-1b employees do not know that they are entitled to receive a final payment from their employer when their employment is terminated so that they can afford their travel back home. This policy exists to encourage terminated H-1b employees to leave the United States and not stay here without legal status. However, if you leave the job voluntarily, you are not entitled to this payment.
What other commonly asked questions about H-1b employment should I know about?
Below are a few examples of frequently asked questions about H-1b employment that are not considered rights of the H-1b employee but are important to clarify so that H-1b employees are aware of these frequently sought after answers.
You are entitled to invest in another enterprise provided that you do not provide any services to that company that will lead to any tangible benefit.
H-1b employees often would like to invest in another business enterprise but worry about the investment being in violation of their status. The key to walk the line of legality in this scenario is to ensure that the H-1b employee, who is also the investor, does not perform any work for the investment enterprise that may lead to tangible benefits for the company. It is permitted for the H-1b employee to serve as an officer of the board, provided that the H-1b employee only reviews information presented to them in the capacity as the investor. H-1b employees should remove any mention of their role in the company on social media and on the internet where USCIS or consulate officers may misunderstand the role of the H-1b employee investors and mistake them as employees of the company. When in doubt, H-1b employee investors should engage the service of other professionals to help him create and manage the enterprise so that he can truly be seen as an investor and keep clear the H-1b employee’s role as the investor.
You are entitled to sell items on the internet as long as the nature of the transaction is personal.
You are entitled to attend classes as long as they are “incidental to status” without needing to file additional documents with USCIS.
Incident to status usually refers to courses that will further the H-1b employee’s career. As long as there is a reasonable connection between the course and the H-1b employee’s work, we have not seen USCIS giving the H-1b employee troubles for attending courses. It is important to note that the courses should not interfere with the H-1b employee’s abilities to perform his work, but it is irrelevant whether these courses result in a degree or certificate.
You are not entitled to perform any work for any other employer or in any other location that is not listed on the Labor Condition Application.
H-1b employees should be advised to not engage in work for any other employer who has not filed an Labor Condition Application as that will be a violation of their status. Also, when the employer changes the work location, a new LCA will need to be filed and an amendment to the existing H-1b petition must also be filed with USCIS to update the new work address.