You know your employer is violating the law. Perhaps, he has benched you with no pay; is paying you less than the required wage; has you sending out resumes instead of writing a computer program.

So why do H-1B employees put up with this situation?

One of the main reasons an H-1B employee tolerates exploitation rather than filing a complaint against the employer is fear of being deported.

This fear is understandable, but protections do exist. Specifically, regulations prohibit the employer from threatening you and retaliating against you if you complain about his violations of the law. 20 CFR 655.801.

In particular, under Department of Labor (DOL) regulations, if you complain about your employer’s violations, the employer is prohibited from threatening to deport you, by firing you, or by treating you in any other discriminatory manner.

If the employer does retaliate, according to the DOL regulations, the employer may be fined up to $5,000 and disqualified from filing H-1B petitions for two years, among other penalties.

In addition, USCIS regulations also offer some protections if an H-1B employee is terminated. When an H-1B employee is terminated, unless he is eligible for another visa status, he will go out of status and must leave the United States.

USCIS recognized that this concern about having to leave the United States discouraged H-1Bs from reporting employer violations to the U.S. government and, thus, enabled H-1B fraud to flourish.

To help ease some of these concerns, the government enacted a new regulation that enables these terminated H-1B employees the possibility of staying in the United States to look for a new job despite having lost their H-1B status. INA §212(n)(2)(C)(v).

Specifically, under this regulation, when an employee is terminated in retaliation for reporting an employer’s H-1B program violations, the USCIS has the discretion to excuse the employee’s loss of status due to that termination by treating it as an “extraordinary circumstance beyond the control” of the employee.

In other words, this regulation allows a terminated employee the possibility of having time to find a new job in the United States and to apply for a change of status or extension of stay.

We do want to stress, however, that the application of this regulation is NOT automatic. USCIS has the discretion whether to apply it.  Depending on the totality of the circumstances, USCIS may approve or reject the “extraordinary circumstance” explanation, and decide whether the H-1B application and the employee will stay or leave the United States.

Unfortunately, USCIS provides little guidance on how it will implement this regulation.  For example, the regulations do not identify a minimum or maximum period that an H-1B employee will be permitted to stay in the United States to look for and find a job without risk of being denied the “extraordinary circumstances” exception.

Perhaps it is 1 week, 1 month, or 1 year. We do not know.

Because, however, the intent of this regulation is to encourage H-1B employees to report their employers who violate the regulations, USCIS does have an incentive to be reasonable with the application of its discretion.

USCIS guidance on the application of this provision is discussed in a memo dated May 30, 2008 available here.

Because every person’s situation is unique, if you have been benched or are not being paid the required wage and are considering filing a complaint against your employer, you should seek competent legal advice before taking any action to determine all the legal options, and the best strategy, for your particular case.

Additional Information

For more H-1B employee rights information, please visit the blog’s main page at www.h1blegalrights.com.  For information about Legal (Attorney) Services for H-1B employees, please visit here.

To learn more about H-1B rights and options, please see these posts:

For information about H-1B Rights & Immigration Rights Attorneys Michael F. Brown and Vonda K. Vandaveer, please visit here.

DISCLAIMER: The information in this article is NOT legal advice, nor does it establish an attorney-client relationship between you and the attorneys or law firms above. Legal advice often varies among situations. If you want legal advice for your specific circumstances, you must consult with an attorney.