As we have discussed in this blawg repeatedly, the highly skilled professionals working under an H-1B Visa are a valuable resource for any company. However, employees on H-1B visas are also subject to different rules and restrictions than other US employees. It’s imperative that employers know and follow the law in matters regarding employees on an H-1B visa, or they may face having to pay back wages and legal fees while enduring a wave of negative publicity.
Highlighting the importance of following the terms of an H-1B visa, and how costly and error can be, is the recent ruling in
DeDios v. Medical Dynamic Systems, Inc. On May 17, 2016, the
U.S. Department of Labor (DOL) issued a decision in DeDios v. Medical Dynamic Systems, Inc. which awarded more than $59,000 in back wages and fees to a former employee. The employee, who worked as a Nurse Manager on an H-1B visa for Medical Dynamic Systems, Inc., filed a complaint with the DOL against the company due to its failure to pay the offered salary as stated on the
Labor Condition Application (LCA) filed with the H-1B visa petition. Upon approval of the employee’s H-1B visa petition, he presented himself to Medical Dynamic Systems as available to work. However, due to a lack of projects, Medical Dynamic Systems did not place him at a healthcare worksite and kept him waiting for a placement without pay, a scenario commonly known as “benching.”
When an employer sponsors an employee for an H-1B visa petition, the accompanying LCA lists the offered salary, a minimum number of hours to be worked, and the work location. Under regulations, an employer is responsible for paying the H-1B worker the offered salary outlined in the LCA and providing the promised employment. “Benching” an employee is not permitted, and can lead to employers having to pay back wages and cover legal fees. If the employee presents himself/herself to an employer as available to work under a valid LCA and H-1B, the employment period begins and the employer is responsible for paying the employee the offered wage.
If your company currently employs H-1B workers and you are not paying them the full salary promised under the LCA and H-1B, the employees could file a complaint with the DOL for back wages, potentially resulting in hefty costs for your organization. Whether the employee is a healthcare employee waiting for their next facility assignment, an IT worker waiting for their next client project, or an in-house employee, “benching” is not permitted. You must pay the offered salary to the employee and provide work as promised in the LCA and H-1B petition.
Concerned over potential back wage issues? Not sure if your business model is causing you to unintentionally “bench” employees?
GoffWilson is here to help! With over 30 years’ experience in Immigration Law and an in-depth knowledge of the workings of the H-1B visa, we've helped numerous employers and employees navigate the complexities of the H-1B visa. Click
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