Brighton's longest bench?
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If you are an H-1B worker who has been benched for months and months, despite your best efforts to find a project, you may find yourself  communicating less and less with your H-1B employer.  Maybe you’ve even stopped contact altogether.

Please know you should not reduce communications with your H-1B employer.

You should have regular communications with your H-1B employer, especially if you have been spending a long time on the bench.  Communications should be in email or written form when possible, so you have proof of your desire and availability for project work.

The law at 20 CFR 655.731(c)(7)(ii) and 8 CFR 214.2(h)  requires an H-1B worker to maintain an employment relationship with the H-1B employer.

If you do not maintain communications with your H-1B employer, you are at risk of being out of status. If you are out of status you cannot extend your status or change your status to another visa category. In addition, having been out of status can make it more difficult to get a new visa at the consulate, even if you are otherwise qualified for the visa for which you are applying.

If you are benched, here are some things you should consider doing:

  • Email or write the H-1B employer regularly (daily, if possible) about your availability and efforts to get project work.

You should email or write your H-1B employer regularly– every business day if possible– to describe your availability and desire to do project work.

If you do not contact the H-1B employer regularly, or you do not have written proof of your communications (e.g. you talk on the phone to the employer), then the employer may deny that you stayed in contact and may deny that you were willing and available to do project work.

  • Keep documentation/proof.

For example, hold on to emails, resumes, letters, and other proof that you contacted the H-1B employer and third parties to seek project work.  If you have many phone communications, then you should keep proof of those calls (e.g. keep copies of phone bills, voice messages, etc.) to prove that you communicated with the H-1B employer and regularly sought project work.

  • Do NOT sign false documents the employer requests, such as forms indicating you resigned or took a vacation or other voluntary leave when you did not choose to do these things.

Some H-1B employers will try to get benched employees to sign false documents, such as vacation or resignation forms, to try to make it appear as if the employee chose to avoid work (rather than being benched and seeking third-party work as a result of the H-1B employer’s actions).

If your employer presents you with a form asking you to sign off on false statements about taking leave- or asks you to state false information of any kind- don’t do it.

  • Do NOT perform unauthorized work unrelated to your H-1B employment.

Do not perform work that is not legally-authorized work for the H-1B employer or project work arranged through the H-1B employer.  You may be tempted to perform work that falls outside your H-1B employment, but you should avoid this temptation, and talk to an attorney about options to work that are legal and compliant with immigration law.

More Information

Here are links to posts with more information of use to benched H-1B workers:

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.

 

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