Do Not Lose Your H-1B Over Wage Issues

By Attorneys Robert L. Reeves and Joseph I. Elias
For
many guest workers the H-1B status is an excellent opportunity to work
and remain in the U.S. while a green card is processing.When the USCIS
grants a worker H-1B status, it places certain obligations, that if not
kept, may jeopardize the worker’s ability to extend the status or even
obtain the green card.

The
most serious and draconian obligation is for the worker to receive the
wage listed on the petition. The CIS has interpreted immigration law in
such a way that it finds the H-1B employee is in violation of H-1B
status if the employee does not at least receive the wage listed on the
petition.The CIS maintains that the employee, who is receiving lower
than the required wage, has the obligation to file a formal complaint
with the employer and even the Department of Labor.If the H-1B employee
takes no steps to try and receive the required wage, the CIS finds that
this worker is not maintaining status and therefore cannot obtain an
extension of status.If the failure to maintain status reaches 180 days,
the person also generally becomes ineligible to adjust status to a
green card holder.

This is a very harsh interpretation by the CIS and
does not take into consideration that the employer is the one filing
the petition or that the employer exercises a much higher bargaining
power.It is unrealistic to expect a worker to challenge his employer
over a wage received for fear the worker may wind up terminated.But,
the CIS is unsympathetic and states that if the worker is terminated,
so be it.CIS’s position is that U.S. labor laws can protect this
employee.This policy fails to take into account the great time and
expense it takes to pursue labor law relief through the Department of
Labor and the courts.The CIS has stated that H-1B employees who show
that they have made an effort to correct wage issues from the beginning
can receive a favorable exercise of discretion and may change H-1B
employers and extend H-1B status.

The immigration bar disagrees with the CIS’s analysis
that penalizes a worker who is not receiving the required wage.But
until the CIS is challenged in Federal Court, its interpretation will
control.Practitioners have recently seen an alarming new trend coming
out of the CIS in H-1B extensions where the worker has not received the
proper wage.The CIS is deciding that since the employer did not pay the
wage in the first H-1B, it does not intend to pay the wage in the
extension. So, the filing of the extension is deemed to be fraudulent
and must be denied.This is particularly onerous for the worker because
when a petition is denied on the basis of fraud, the worker is also
deemed to have been out of status on the date his I-94 card expired.If
the worker has 180 days or more out of status, this triggers a
3-year-bar to reentering the U.S.Since many CIS offices take 180 days
or more to decide a case, this places many workers at risk for harsh
and unwarranted punishment by the CIS.

There are a myriad of legitimate reasons that a
worker does not receive the wages listed on the petition.The most
common is the employer’s need for the position is reduced from
full-time to part-time.In this type of situation the employer should
immediately file an amendment to show the position’s hours have been
reduced.Employers should not wait until it is time to file the
extension to inform the CIS.And despite contrary belief, one can be
petitioned for part-time H-1B employment.

Because the CIS treats the non-receipt of the proper
wages so harshly, it is very important for H-1B employees to regularly
check their wage statements and confirm that they are receiving the
correct wage.If they are not, they should immediately contact an
immigration practitioner to advise them on what steps need to be taken
to preserve their H-1B status.The problem should not be ignored because
it will not just go away.Failure to address it straight on can result
in the permanent loss of H-1B status (either with the same employer or
a new employer), triggering of 3 and 10-year-bars, and loss of the
ability to adjust status to a permanent resident.The solution may be as
simple as filing an H-1B amendment, or as complex as contesting the
wage with the employer and perhaps even the Department of Labor.This
can be a delicate situation and should only be entrusted to those who
have the experience to handle it properly.

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