We see the same cycle with some H-1B employers: (1) they bench an H-1B worker without pay; (2) the worker understandably wants to transfer to a new employer who pays him; and (3) the benching employer offers the worker fake paystubs, to “help” the worker transfer.

If YOU find yourself in this situation, do NOT accept the “deal.” Using fake paystubs is illegal, and can lead to serious problems.

You have other, lawful options to transfer H-1B employment to a new employer.

Namely, an underpaid H-1B worker who does not have valid paystubs to show he has maintained status (by being benched through no fault of his own) can often assert a legal argument to USCIS as an exception to replace the paystubs requirement.

The legal argument/exception is called “extraordinary circumstances.” If an H-1B worker has proof he tried to get work on behalf of his current (benching) H-1B employer, but he was benched without pay, the worker can ask USCIS to decide these were “extraordinary circumstances” that allow him, despite not having paystubs to show he has been maintaining his status, to move to the new H-1B employer.

You should consult with an immigration attorney– whether an attorney you retain yourself, or the new employer’s immigration attorney– BEFORE you accept fake paystubs or file  for an H-1B with a new employer.

A competent immigration attorney can advise an H-1B worker on his or her options for changing employers without paystubs. Of course, no attorney can guarantee USCIS will find your situation to be an “extraordinary circumstance” and approve a new H-1B. That decision is in USCIS’s discretion and is not automatic. An attorney, however, can help you put your best (lawful) information forward, and put you in the best position possible for USCIS to view your situation favorably and hopefully approve your new H-1B employment.

Clients of blog author Vonda Vandaveer (an immigration attorney) have been successful in requesting USCIS find “extraordinary circumstances” exist in situations where H-1B employees have been benched and have no pay stubs.

The bottom line is that accepting a “deal” for fake paystubs with your employer who caused your problems in the first place is only going to make matters worse. Instead, you have the honest, lawful option of attempting to explain the “extraordinary circumstances” beyond your control to USCIS, and preserve your ability to continue to apply for a visa to live and work in the United States.

Attempting to change H-1B jobs is a big decision, and deserves careful consideration and assistance.

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.

This blog is authored by Employee and H-1B Rights Attorney Michael Brown, and Immigration Attorney Vonda K. Vandaveer of 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.