The H-1B visa program is a cornerstone of U.S. immigration policy, enabling American employers to hire highly skilled foreign workers for specialty occupations. While this program offers significant opportunities, it also has strict regulations that employers must follow. Unfortunately, violations of these regulations can and do occur. This article aims to shed light on these violations and help H-1B workers recognize and protect themselves from potential employer misconduct.

False Information on Labor Condition Application (LCA)

One of the most fundamental requirements for employing H-1B workers is the submission of the Labor Condition Application (LCA). This document ensures that the employment of H-1B workers will not adversely affect the wages and working conditions of U.S. workers. However, some employers may submit false or incorrect information on the LCA.

Example: An employer might falsely state that a position only requires a Level 1 prevailing wage for an entry-level position, when in reality, the job demands an experienced employee who exercises judgment and has supervisory authority over staff, which warrants a Level 3 prevailing wage. If you notice discrepancies between your actual job duties and what was described in the LCA, it could indicate that your employer is violating H-1B regulations.

Failure to Pay the Required Wage

H-1B workers are entitled to be paid the higher of either the prevailing wage for their occupation in their specific geographic area or the actual wage paid to other employees in similar positions within the company. This ensures that H-1B workers are not exploited and that U.S. workers’ wages are not undercut.

Example: If the prevailing wage for your occupation is $70,000 annually, but your employer pays you $65,000, this is a violation. Ensure you understand the prevailing wage for your role and compare it to your actual salary. This information will be listed on the LCA, which the employer is required to give you a copy of.

Failure to Pay for Time Off Due to Employer Decisions

Employers must continue to pay H-1B workers during periods of non-productive status initiated by the employer. This includes situations such as temporary layoffs, company shutdowns, or periods when the worker is waiting for a required license or permit or when no work is available.

Example: If your project ends and the employer does not pay you while they are looking for a new project for you, they are in violation of the H-1B program requirements. You should be compensated for any downtime that is not your fault.

Illegal Deductions from Wages

Employers cannot make deductions from an H-1B worker’s salary that cause their wages to fall below the required amount. This includes deductions for visa processing fees, travel expenses for business, and necessary tools or equipment.

Example: If your employer deducts $5,000 from your salary to cover visa application fees, resulting in your salary dropping below the prevailing wage, this is illegal. Such expenses should be borne by the employer.

Unequal Working Conditions

H-1B workers must receive the same working conditions as U.S. workers in similar positions. This means equal treatment in terms of hours, shifts, vacation periods, and other employment terms. Additionally, the employment of H-1B workers should not adversely affect the working conditions of U.S. workers.

Example: If you notice that U.S. workers are given more favorable shifts or more vacation time compared to you, this could be a sign of unequal treatment. Employers must not discriminate between H-1B and U.S. workers in their employment practices.

Failure to Provide Notice of Hiring Intentions

Employers must inform their current employees or their representatives of their intention to hire H-1B workers. This can be done through physical or electronic posting of a “Notice of Filing”. Additionally, H-1B workers must receive a copy of the LCA.

Example: If your employer did not post a notice of your hiring or you did not receive a copy of your LCA, they may be violating the H-1B program rules. Transparency in the hiring process is essential to maintaining fair labor practices.

Requiring Payment of ACWIA Fee

The American Competitiveness and Workforce Improvement Act (ACWIA) fee, which funds training programs for U.S. workers, must be paid by the employer and cannot be passed on to the H-1B worker.

Example: If your employer asks you to reimburse the ACWIA fee, they are in violation of the H-1B regulations. All costs associated with compliance should be the responsibility of the employer.

Imposing Illegal Penalties

Employers cannot impose penalties on H-1B workers for leaving their job before a specified date. However, liquidated damages may be permissible under state law if the worker breaches a contract.

Example: If your employer demands a $10,000 penalty for terminating your employment before the end of your contract, this is an illegal penalty. Liquidated damages should be reasonable and reflect actual losses rather than punitive amounts.

Retaliation or Discrimination Against Whistleblowers

Employers are prohibited from retaliating against employees, former employees, or job applicants for reporting violations, filing complaints, or cooperating with investigations into H-1B program compliance.

Example: If you report a suspected violation to the DOL and your employer retaliates by reducing your hours, cutting your pay, or terminating your employment, this is illegal. Whistleblower protections are in place to encourage reporting without fear of retaliation.

Protecting Your Rights as an H-1B Worker

Understanding these potential violations is crucial for protecting your rights as an H-1B worker. If you suspect your employer is violating any of these regulations, consider the following steps:

1. Document Everything: Keep detailed records of your job duties, wages, hours worked, and any communications with your employer regarding your employment conditions.
2. Seek Legal Advice: Consult with an experienced immigration attorney who can help you understand your rights and guide you through the process of addressing any violations.
3. Seek New Employment: The job portability provisions of AC-21 allow an H-1B worker to change employers upon the filing of an H-1B transfer by the new employer. If you do not have pay statements due to the employer’s violation of the above provisions, you may still be able to transfer successfully by filing “nunc pro tunc” or by traveling and returning to the U.S. with a valid visa stamp and the new employer’s I-797 approval.
4. Report Violations: File a complaint with the Department of Labor if you believe your employer is violating H-1B program regulations. Whistleblower protections ensure you can report violations without fear of retaliation. See https://www.dol.gov/agencies/whd/forms/wh4

Conclusion

The H-1B visa program is designed to benefit both U.S. employers and highly skilled foreign workers. However, compliance with its regulations is essential to maintain fairness and protect the rights of all workers involved. By understanding the common types of violations and knowing how to recognize them, H-1B workers can better safeguard their rights and ensure they are treated fairly in their employment. If you suspect any wrongdoing, don’t hesitate to seek legal advice and take appropriate action. Your vigilance is key to maintaining the integrity of the H-1B program and ensuring a fair and equitable work environment.

Reddy Neumann Brown PC, with over two decades of experience, focuses exclusively on U.S. employment-based immigration law and provides comprehensive assistance to both employers and employees in maneuvering through the immigration process efficiently and effectively.

By: Emily Neumann

Emily Neumann is Managing Partner at Reddy Neumann Brown PC with over 15 years of experience practicing US immigration law providing services to U.S. businesses and multinational corporations. Emily has helped transform the firm from a solo practice to Houston’s largest immigration law firm focused exclusively on U.S. employment-based immigration.  She received her Bachelor’s degree in Biology from Central Michigan University and her Juris Doctorate degree from the University of Houston Law Center. Emily is a frequent speaker and has been quoted in Forbes, Bloomberg Law, U.S. News & World Report, Inside Higher Ed, and The Times of India on various hot topics in immigration. She is a member of the American Immigration Lawyers Association and Society for Human Resource Management.