The H-1B visa status is intended to allow qualified foreign workers in specialty occupations to find employment in the U.S. under similar conditions to U.S. workers. Unfortunately, it is not uncommon for U.S. employers to abuse the H-1B system in various ways, so as to maximize their profits. These abuses negatively impact both U.S. and foreign H-1B workers, and U.S. Citizenship and Immigration Services (USCIS) largely relies on individual reporting to investigate it.
Whether you’re an H-1B worker or a U.S. worker in a workplace that also hires H-1Bs, you’ll want to understand the various ways employers can illegally take advantage of the H-1B system. That way, you can recognize when and how to report such misconduct.
Most commonly, employer transgressions involve having the H-1B holder work in conditions different from those presented in the H-1B petition or from other U.S. workers with the same job description. Such fraud can take many forms, as described below.
The term “benching” describes a situation where an employer fails to pay an H-1B worker despite not having terminated the worker. This can occur, for example, when company operations slow down, and the employer is seeking to cut corners, essentially by “benching” some employees to the sideline and having them stay home from work for a temporary or extended period of time.
This is illegal when it comes to H-1B workers. Employers must, by law, continue to pay their H-1B employees at least the minimum prevailing wage throughout the employment relationship. If you're in H-1B status, your employer can stop paying you only if your employment is terminated, either voluntarily or involuntarily.
For example, say a software consulting company is experiencing a downturn, where several of its H-1B employees do not have work available to them. The company may not cease payment of the minimum prevailing wage to the H-1B employees during the employment relationship, even given the lack of work.
Among the many steps an employer must take to sponsor a foreign worker for an H-1b is to file a Labor Condition Application (“LCA”) certified by the U.S. Department of Labor. The LCA certifies that the prospective H-1B employee will be paid at least the minimum prevailing wage, determined in part by the actual job location. This makes the LCA very important, and if the employer deviates from the information certified in the LCA without properly disclosing it to USCIS, it could be committing fraud.
Fraud of this sort can occur one of two ways. First, it is illegal for the employer to pay the H-1B worker less than the minimum prevailing wage as specified by the LCA. There are no conditions that allow for the employer to pay less than the prevailing wage without the appropriate amendment filing accompanied by a change in the working conditions.
Secondly, the employer is not allowed to have the H-1B worker work in a location outside of the metropolitan statistical area of the locations stated in the LCA. The worker’s employment location is essential to determining the minimum prevailing wage, so that when a worker moves out of the certified area, an amendment and new wage calculation must be conducted. It is ordinarily illegal for the employer to pay an H-1B holder less than the wage indicated on the LCA without first filing an amendment or to send the H-1B employee to work in a location not certified in the LCA without an amendment.
Some employers have been known to file a misleading H-1B petition, indicating that a candidate is qualified for the sponsored role who really isn’t, or lying about the duties the worker will be conducting.
For example, if the company typically requires four years of experience for its Software Developer II role, and the petition indicates that a candidate is qualified who has only two years of experience, this is a fraudulent petition.
Similarly, if the candidate is sponsored for an entry-level position with an entry-level salary but in reality has higher-level or managerial duties, this is an example of illegal use of the H-1B. This type of abuse particularly affects you if you’re an H-1B holder, as you would be paid far less than your actual position calls for.
H-1B abuse also occurs where there the employer pays different wage amounts to H-1B and U.S. workers in the same position.
The U.S. Department of Labor and Immigration and Nationality Act have indicated that H-1B employers should pay their nonimmigrant workers the higher of the minimum prevailing wage and the employer’s actual wage for the position. It is illegal for the employer to pay an H-1B worker less than what it pays a U.S. worker for the same work.
For example, if a company typically pays a U.S. level-three financial analyst $100,000 a year, but the Department of Labor prevailing wage indicates that the minimum prevailing wage is $80,000, the employer must pay what it would pay a U.S. worker in the same position, namely $100,000.
However, because the initial H-1B petition typically involves proving that the H-1B worker will be paid at least the minimum wage indicated on the LCA, and doesn’t ordinarily require proof of other U.S. employees’ salaries in the same role, employers sometimes try to get away with paying the H-1B worker less than the U.S. worker wage but more than the minimum prevailing wage. This type of H-1B abuse is most often brought to light by individual reporting or USCIS site visits.
This practice causes issues for both U.S. workers and H-1B holders. The unethical wage disparity deters employers from hiring U.S. nationals because they often can get away with paying the minimum prevailing wage to H-1B workers. However, this also causes H-1B workers to be paid lower than what the U.S. market demands for their particular skill set.
An employer caught engaging in any sort of the above-listed fraudulent acts may be subject to certain sanctions. These are typically economic, such as fines. Also, in cases such as benching, the fraudulently behaving employers might be required to pay back wages to the affected employees. If the illegal activity is particularly egregious, criminal penalties may apply.
USCIS routinely conducts site visits, which is how many cases of H-1B fraud and abuse are discovered. However, if you notice any of these illegal activities in your workplace, consider taking the necessary steps to report them, so as to prevent your employer from taking advantage of you and other employees.
There are several ways to report. USCIS encourages people who feel they are the victim of H-1B abuse to email [email protected] with tips and any relevant information concerning the suspected violations. Additionally, you can fill out Form WH-4 with the Department of Labor to report, or complete the U.S. Immigration and Customs Enforcement HSI form.
Certain protections might apply if you are reporting as an H-1B worker affected by H-1B fraud or abuse. Your employer’s illegal activity could qualify as “extraordinary circumstances” that would allow you to maintain your immigration status in the event it is affected by any resulting investigation. This protection is evaluated on a case-by-case basis, however, so it’s not guaranteed.
Deciding whether to report your H-1B employer for any of the above illegal activity can be a tricky determination. As a nonimmigrant worker in the U.S., you have a right not to be illegally exploited by your U.S. employer, but the fear of retaliation from the government and potential loss of employment caused by reporting such illegal activity are valid concerns. If you feel that you are the victim of H-1B fraud or abuse, please consult an immigration attorney to assist in your decision of whether and how to report.