Avoiding H-1B Visa Wage Violations
H-1B visas allow certain skilled foreign nationals to work in the United States
for 3 years or, if renewed, for 3 years more. They are used most frequently
by high-tech employers, universities, and multinational employers that find
workers with certain qualifications in short supply. The visas are available
for jobs that require at least a bachelor’s degree and call for the theoretical
application of a highly specialized body of knowledge.
Recently, Computech Inc., which places computer professionals at workplaces
throughout the nation, agreed to pay $2,250,000 in back wages and a $400,000
fine to settle Department of Labor (DOL) charges that it violated H-1B visa
rules concerning the employment of over 230 foreign nationals.
Computech allegedly didn’t pay workers on H-1B visas, several of whom
were in California, the minimum required wage rates in the areas where they
were employed. Computech was also accused of frequently “benching”
the H-1B workers without compensation, which violates H-1B program rules. Besides
the back wages and fine, the settlement also prohibits Computech from participating
in the H-1B visa program for 18 months.
Many employers that hire foreign workers on H-1B visas when work is plentiful
often struggle with what to do with them when times are tough. But as the recent
Computech development shows, paying these workers a lower wage than authorized
or “benching” them isn’t the answer.
Here are some guidelines to help you follow the rules and stay out of trouble:
Follow wage requirements. Sponsoring a worker for an H-1B visa involves
various steps, including filing a Labor Condition Application (LCA) with the
DOL and, once that’s approved, applying to the U.S. Citizenship and Immigration
Services (USCIS) for the actual visa. In your LCA, you must agree to pay the
worker your industry’s prevailing wage or the actual wage for that job
at the worksite, whichever is higher. These rates must be backed by a wage survey.
You’re also required to offer these foreign workers the same benefits
you provide U.S. employees. It’s important to keep the wage information
that’s in your H-1B file up-to-date to help defend your pay practices if
an H-1B visa worker complains to the DOL that they are paid less than the prevailing
Don’t bench workers. Some employers who are implementing layoffs
or other cost-cutting measures may be tempted to “bench” an H-1B workerto
stop paying them when there is no work without actually firing them and terminating
their visa sponsorship. But this practice is prohibited, and continuing as the
worker’s sponsoring employer for visa purposes can leave you open to claims
for back wages.
The law requires you to pay a worker you sponsor at the prevailing wage until
you withdraw the visa petition. If no work is available, immediately notify
the USCIS to vacate the visa. Also, try to give H-1B visa employees as much
advance notice as possible before a layoff so they can look for another job
while still on your payroll