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Another cautionary tale for Businesses Employing H-1B's

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Many employers utilize H-1B visas.  For various reasons, US Workers simply cannot be found to fill certain positions, especially in the high tech realm.  Unfortunately, not all companies are aware of the myriad of rules that apply to H-1B workers.  One practice used by many employers is "benching" employees - which basically is not paying the employee for times that the employer has no work.  While this is ok if you have US workers, be they employees or independent otnractors, it is not ok for H-1B workers.  Under the H-1B program, employers must pay their H-1B workers the wage listed in the H-1B paperwork for the entire time they are employed by the employer.  There is no such thing as downtime, benching, etc.  Every day an employee is employed, they must be paid.


This leaves an employer 2 choices:  One, pay the workers even though you do not have work for them; or, Two, end the H-1B and send the worker home even though you may need them in a couple weeks or a month or so.


Neither of the above choices are ideal, however the only other option, keeping these workers in the US but not paying them, is illegal.  Recently a high tech employer was sued by the Department of Labor for trying this last method.  Semafor Technologies, LLC agreed to pay  $740,000 in back wages to 74 workers, 69 of whom they failed to pay during times they were not physically working.


The Department of Labor, under the Obama Administration, is much more careful in looking into these type of cases and it is clear that any employers violating these rules will eventially get audited by the DOL and may be subject to back wages and fines.  There are certainly arguements to be made on both sides.  For the employer, they do not want to undergo the expense of having to redo H-1B's, send employees home, etc. simply becuase of a temporary work shortage.  On the other hand, the Department of Labor has two interests in seeing that employees are paid. First, if there is a work shortage, and then it clears up, the employer may be able to find US employees who were similarly benched during this period, and the DOL would prefer that those US workers be given jobs over non-US workers.  Second, the H-1B program is very clear that it requires the prevailing wage to be paid at all times, and th DOL is simply enforcing this requirement.


While you, as an employer may not want to terminate H-1B employees just because you have a temporary work shortage, and you may not want to pay employees for times in which you do not have work for them, it is clear that these are the only options the DOL is willing to consider at this point.

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Comments

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  2. galstyanimmigration's Avatar
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  3. Yasmina's Avatar
    be nice if there was some real info on these pages instead of motlsy opinionated bashing present your points please without name-calling if you can.I have worked in both sectors and have worked part-time in retail where that is the only job left imagine a large neighbourhood grocery store with only 3 full-time staff! You can't get a full-time position if you wanted one. Good to see that some people have never needed the union to back them up where do you work? Got any full-time jobs available?If you don't want to believe your union, then at least read both sides and make an informed decision. Everyone has a right to their own beliefs and everyone makes these decisions based on their own experience.I'm on the picket line for a number of reasons, if you can't respect that then I can't respect you.
  4. Peter's Avatar
    I am one of those people who crsoesd the line and returned to work as none of the people I owe money to (mortgage, car, bills) cared that I was on strike (maybe they think it's as ridiculous as everyone else I speak to does). I fully expect to be called names (that don't hurt because they mean nothing to me) and shunned once everyone returns to work. The thing that I don't understand is that I did what I had to do. You're right, none of the people who will villify me would have been willing to pay my bills for me, and nobody else is in my situation. I'm still the same person I was before, when these people were my friends and co-workers, and if they are going to hate me because someone else told them to, well I guess they were never friends in the first place.
  5. Immigration Lawyers Los Angeles's Avatar
    I just came onto your post and found it quite interesting. I am also associated with family law attorney Pasadena, Divorce lawyer in Los Angeles,Los Angeles Divorce attorneys and love to enjoy the stuff on the same as its rarely found on internet. Thanks again for writing such a good post.
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