Worker's Rights and Responsibilities With an H-1B Visa
You are protected as a H-1B visa holder by immigration and employment laws.
If you are an H-1B worker, you are protected by immigration and employment laws that safeguard your rights as a foreign employee. You also important responsibilities you must meet in order to maintain legal status in the United States. You can learn about your rights and responsibilities in this article.
Your Rights as an H-1B Worker
You have the right to be paid the prevailing wage for your position. The prevailing wage is the normal wage paid to employees in a specific occupation. The wage amount is largely dependent upon the specific location of employment. For example, the 2012 prevailing wage for pediatricians working in Albany, New York is $100,818 per year, whereas the prevailing wage for pediatricians working in Morgantown, West Virginia is $47, 050 per year. Therefore, if an H-1B worker is employed as a pediatrician in Albany, New York, the worker must be paid at least $100,818 per year.
If your employer pays you less than the prevailing wage, you have the right to inform the Department of Labor (DOL) that your employer is not in compliance with the wage laws, and you may have the right to receive back wages.
Importantly, your employer cannot retaliate against you (for instance, fire you) for bringing a complaint against it to the DOL.
You have the right to receive a copy of the Labor Condition Application (LCA) that your employer files with the DOL. The LCA outlines the terms and conditions of your H-1B job and you should retain this document in your records for the duration of your employment.
You have the right to work in a discrimination-free environment. Employers are prohibited from discriminating against H-1B workers on account of the workers’ national origin or immigration status. Your employer must offer you the same benefits (stock options, sick leave, insurance, and so forth) that are offered to your U.S. citizen and permanent resident colleagues, and your employer cannot require you to work in less favorable conditions solely because you are a foreign employee.
You also have the right for your employer to pay the costs of your return trip home if your employment is terminated before the end date provided on the LCA. The employer must pay these costs regardless of the reason for your termination. However, if you terminate your employment prematurely, the employer is not responsible for paying these costs.
Additionally, you are eligible to bring your family (your spouse and unmarried children under the age of 21) to the United States. Your family can obtain H-4 visas to come to the U.S. as your dependents (or if your family is already in the U.S. in different statuses, they must file an I-539 application to change their statuses to H-4).
Please note that we purposefully state you are “eligible” to bring your family as H-4 dependents – not that you have the “right” to do so. The reason for this is because if one of your family members has an immigration inadmissibility issue, such as a criminal conviction or previous unlawful presence, the family member may not be able to obtain an H-4 visa.
Your Responsibilities as an H-1B Worker
You are responsible for abiding by the terms and conditions of your H-1B employment by working only for the employer who sponsored you and performing only those job duties outlined in the LCA. You cannot work for a second employer if that second employer does not also sponsor you for H-1B status. (It is possible for one worker to have two H-1B employers, but both employers must file H-1B applications for that worker.)
You must also maintain lawful immigration status, by not remaining in the U.S. after your H-1B status expires. For this reason, it is important to understand when your status expires. Up until early 2013, all foreign visitors received a paper Form I-94 card, but now Form I-94 has been automated and you can check your status online.
It is of the utmost importance that you confirm, at the time you receive the I-94 card (or the automated notice), that the border officer put the correct expiration date. Border officers have put the wrong expiration date on Form I-94, and it is up to you to discover their mistake.
For example, let's say your H-1B approval notice states that your status is valid from October 1, 2013 through September 30, 2016. However, when you enter the U.S. on October 1, 2013, the border officer mistakenly puts September 30, 2014 as the expiration date on your I-94 card. Even though your approval notice says your status is valid until September 30, 2016, the I-94 now governs the validity of your status. Therefore, your status would now be valid only until September 30, 2014, unless you point out the officer’s mistake and the officer issues you a corrected I-94 card.
(If your employer filed your H-1B petition when you were in the U.S. in a different status, your I-94 card was provided on the bottom of your H-1B approval notice.)
You must either leave the U.S. when your status expires or your employer must extend your status. Your employer files the H-1B extension application with U.S. Citizenship and Immigration Services (USCIS); the same agency that received your first H-1B application. USCIS must receive the extension application before the expiration of your status in order to approve the extension request. It is not sufficient to merely postmark the application before your status expires. (For a detailed explanation on extending H-1B visas, see Can You Renew Your Nonimmigrant Work Visa.)