Behind glass
Image by 96dpi via Flickr

If you complained to your H-1B employer because they committed wrongs– such as making you pay H-1B filing fees and benching you without pay– you may find the employer has compounded the problem by threatening or harassing you because of your complaint.

The law prohibits an employer from retaliating against you for complaining about the employer’s unlawful H-1B practices.  With that said, the law also prohibits people from driving through red lights, but plenty of people do it anyway. Just as people ignore the law and run red lights, employers may ignore the law and retaliate against you for complaining about their unlawful conduct.

This post discusses common ways H-1B employers may retaliate against  H-1B workers who complain, and what H-1B workers should consider when dealing with such threats or harassment.

If you complained about your H-1B employer’s unlawful conduct (e.g. complained that they’re benching you without wages), the employer may have responded with one or more of these common threats:

  • Threatening to terminate your employment;
  • Threatening to contact USCIS and revoke your visa;
  • Threatening to have you deported;
  • Threatening to bring a lawsuit against you (sometimes, such a threat will be made, based on an employment contract or non-compete requirement that the H-1B employer claims you violated); and/or
  • Threatening to disclose negative information about you to potential employers or other third parties.

Some H-1B employers make threats like those above, while others will retaliate with various forms of harassment like:

  • Calling you repeatedly and begging you not to take legal action;
  • Calling your family members and pressuring them to ask you not to take legal action;
  • Having members of the owner’s family call you, acting as if they are a friendly or impartial actor, and asking you for information;
  • Trying to play on your sympathies, claiming that if you make a legal complaint it will harm the employer’s owner and the owner’s family (often this plea for sympathy is made by the same person who knew that YOU and your family were being deprived of months’ worth of income while you were on the bench, but was not concerned about your well-being at that time); and/or
  • Making promises they won’t keep, such as claiming a great project is right around the corner when in reality nothing has changed.

Things to Consider When You are Being Threatened or Harassed

If you are being threatened or harassed, here are some things you should consider:

  • Learn about your H-1B legal rights.

Many H-1B workers quietly accept threats and harassment because they are not aware of their rights.  Many H-1B workers are not aware of laws that an H-1B employer is violating or enforcement mechanisms (such as retaining an attorney and/or filing a Department of Labor complaint) that are available.

If your H-1B employer has underpaid you or otherwise treated you unfairly, there are several types of laws that may potentially be violated. The laws include: (1) immigration law and Department of Labor (DOL) regulations (e.g. regulations requiring that the “prevailing wage” be paid to H-1B workers, or regulations requiring that the employer not deduct certain expenses from H-1B workers’ paychecks); (2) federal overtime and minimum wage laws; (3) state wage laws; and (4) various fraud laws.

Here is a link to immigration regulations that address an employer’s obligations to you.  These laws include, but are not limited to, the employer’s obligations (1) to pay you the prevailing wage or actual wage; (2) to provide you comparable benefits (health insurance, etc.) as U.S. workers are provided; (3) to not make unfair deductions from your paychecks (e.g. to cover certain visa costs, rent deductions, etc.).

The DOL provides summary information about H-1B employees’ rights at this webpage and this one as well.

As DOL’s web page indicates, H-1B workers can file wage complaints to DOL – you can find your local DOL contact information here, to learn more about filing a wage complaint.

Before you file a DOL complaint, you may want to consider the factors mentioned in this post.

  • Document what the H-1B employer is doing and save documentation.

You should consider (1) keeping a journal with detailed notes about the H-1B employer’s acts, with the dates, names and details of what occurred (e.g. “10-1-09: Manager John Doe called me at 5:15pm, and told me to pay $1,500 for an ‘immigration document fee,’ or else I would be fired”); and (2) SAVING documents and other proof (e.g. voice messages, emails, sms/text messages, etc.) of what the employer did wrong.

See our post here for more information about keeping a journal and saving documents and other proof.  The post here addresses issues with making recordings.  (Before making any recording without consent, it is important you become familiar with the laws that apply to recordings in your area– for example, some States say it is illegal to tape-record someone unless both parties to the communication have consented).

  • Consider what leverage you have– it is usually more than the leverage a fraudulent H-1B employer has.

As you learn more about the H-1B legal rights you have, and how strong some of those rights are if pursued appropriately, you may learn that you are actually in a position of strength as compared to the H-1B employer.

Often, H-1B workers who start from a position of weakness (e.g. a benched H-1B worker’s employer has ignored months’ worth of requests for wages, and has responded to complaints with threats) wind up in a much better position after they retain an attorney who will assist them in communications with their employer and making the employer truly understand that the H-1B worker has rights that can be legally enforced.

  • Consider getting outside help from an H-1B rights attorney and/or from the Department of Labor.

Once an H-1B worker retains an attorney, that typically (although not always) causes the employer to retain their own attorney.  Usually, once a fraudulent H-1B employer has retained their own attorney, and truly understands that it may be held legally-accountable for its misconduct, the employer (and its attorney) will take the H-1B worker and his or her attorney seriously.

After an H-1B worker retains an attorney, usually the H-1B worker will see signs of genuine progress from the employer that were not present before. For example, the employer may offer to pay settlement money and/or overdue back wages that were not offered to the H-1B worker while he or she was trying to deal with the employer on his or her own.

Another way some H-1B workers cause an employer to take them more seriously is to pursue a wage complaint at DOL.  Before you file a DOL complaint, you may want to consider the factors mentioned in our post here.

Many workers find that in acting on their own– sometimes, even after filing a DOL complaint on their own– they don’t get much progress from the H-1B employer.  A fraudulent H-1B employer often reacts to informal complaints from H-1B workers with threats or harassment of the type discussed above, or with empty promises.  In these types of circumstances, an attorney and/or a DOL complaint and DOL investigation may make a positive difference.

  • PLAN before you act; get a safety net in place.

If you are facing threats and/or harassment from your H-1B employer, you have many potential options and outcomes.  Before you take any ACTION toward those outcomes, however, it is good to PLAN.  That is, you should think “If THIS happens, that how can I PLAN to prepare for that scenario.”

For example, if you are concerned the H-1B employer may fire you for a wage complaint you want to make, then you may want to look for another job, and educate yourself about the H-1B transfer requirements, before you make the complaint.

Often, you can make plans to protect yourself by looking for a transfer to a new job and new H-1B employer, or by making arrangements for some other safety net (e.g. a student visa for a school program of interest).  An attorney can assist with the logistics of these plans.

For more information, see our posts titled “When H-1B Employment Trouble Arises, Start Work on Plan B Immediately” and “Learn ALL About Your H-1B Rights Before You Give Your Employer An Earful About Them.”

Additional Information

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.

This blog is authored by Employee and H-1B Rights Attorney Michael Brown of the law firm of Peterson, Berk & Cross, and Immigration Attorney Vonda K. Vandaveerof the law firm V.K. Vandaveer, P.L.L.C.

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.