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As we know, an H-1B visa is an employer-sponsored non-immigration visa. Once the H-1B holder is laid off, if he fails to find a new employer who files an H-1B transfer for him, or transfer to another type of visa such as F-1 in a short period of time, his H-1B status will expire and the deportation process will begin.

Recently, an H-1B holder, Tom is kind of screwed up about the arrangement of the incoming Labor Day. Tom was an international student, who graduated with a CS master degree. After graduation, he finally found a small software company in Silicon Valley whose boss was willing to sponsor him for the H-1B visa. His H-1B took effect on October 1 last year and he has worked for the company for about one year. Weeks ago, Tom had scheduled a Labor Day vacation which included meeting his friends from the same university program. However, several days ago, Tom received an E-mail from his boss assigning him a lot of work on Monday, September 4 or he will get no pay on that day. It upsets Tom a lot. However, he fears that protesting to his boss would result in a layoff.

Indeed, based on the sponsorship of the employer to the H-1B status, Tom’s issue bothers a lot of other H-1B holders. They just keep silent to all unfair treatment their boss have done to them, such as no salary on holidays or benching them without pay during their enterprises’ nonproductive period, because they worry once they file a complaint about such exploitation, they will get laid off and be deported from America immediately. Next, we will talk about rights of the H-1B holder and see how they can get an equitable balance with their employer.

In fact, the Immigration and Nationality Act and the U.S. Department of Labor provides protection to H-1B employees. Generally speaking, H-1B employers enjoy the same rights with U.S. worker at the same position in the same geographic area. That is to say, the employer has to pay the H-1B employer the wage which is at least not below the Prevailing Wage in the area and the position, and the employer has to provide the same working conditions as the U.S. workers and must not discriminate against the H-1B employee in any way.

Some of employers will bench their H-1B employees or the other U.S. workers during the non-productive period, which means the employer assigns no work and thus pay no salary to his H-1B employees. This practice is forbidden by the “No Benching Rule” which means that if a nonproductive status results from reasons of the employer, such as lack of assignments or lack of license, the employer has to pay the wage to his employees. For the H-1B employees, DOL gives a more detailed explanation. Employers shall not fail to pay H-1B employees “in cases of annual plant shutdown or holidays or other events, which affect both U.S. and H-1B workers, even if the U.S. worker is not paid.” Of course, the employer’s actions will not be held illegal if the failure to the pay wage is due to voluntary request or benefits the H-1B employer such as the H-1B employee asking for leave during his working time. Except for this situation, the employer has to pay the required wages to the H-1B employer until the H-1B status expires. Therefore, rejection to pay Tom the salary on Labor Day is illegal. Why will DOL give H-1B employees such great protection? In fact, it is not just for the care of alien workers, but to rise up the threshold of H-1B qualification in order to control the alien worker numbers and protect the local job market in US.

H-1B employers dealing with such unfair situations are highly recommended to communicate with their supervisor or boss directly to work things out to avoid jeopardizing the relationship in the H-1B employment. In most cases, it will effectively keep the balance between H-1B employers and employees. A sensible employer will not take the risk of being reported for exploiting the H-1B employee. Also, the employer probably will not find other excuses to lay off the H-1B just because the employee won’t tolerate the exploitation. Otherwise, if the laid-off employee requests to go back to his own country before coming to America, according to the law, the employer has to pay reasonable travel expenses for the H-1B employer, most commonly, a one-way flight ticket.

In case the employer still carries on the exploitation and threaten to fire the H1B employee if he reports the unlawful treatment, we suggest H-1B employee file a WH-4 complaint to the DOL with sufficient evidence to justify the illegal treatment. If the complaint gets approved, the wrongdoing employer will face a $5,000 fine or be deprived eligibility to file an H-1B application for at least 2 years. On the other hand, if the H-1B employee can demonstrate he is laid off due to the employer’s retaliation for the report illegal violations, he will maintain his status until the original approved status expires. Laid-off employees can find a new employer to transfer their H-1B visa or transfer to another visa type in this period. However, the processing of the WH-4 complaint is purely based on the discretion of the DOL. Sometimes a WH-4 will be denied even if the petitioner believes he have a strong claim and evidence. In this case, the H-1B employee’s benefits will be badly affected since he has lost both his job and status at the same time and will be forced to leave America. Therefore, before taking action, please consult with an experienced attorney first to prepare the complaint, make it more sophisticated, or see if there are other solutions.

Next, let’s talk about the relationship between H-1B visas and 1099 contractors (independent contractors). A 1099 contractor is a person who is working for himself/herself. Usually they have no regular salary, their income is based on the project they are doing for others. According to the law, H-1B status employees can’t act as a 1099 contractor because H-1B status is sponsored by the petitioning employer and the H-1B holder can only work at the applied and approved jobs. Of course, several H-1B statuses can be possessed at the same time if the alien is working for several petitioning employers. Sometimes, the employer can send the H-1B employee to work on another employer’s worksite but need to get approved first. We don’t suggest any violation on your status in America since it will adversely affect the process of applying for other visas or a Green Card later.

At last, we hope all working people have a wonderful Labor Day.