Beach

Beach (Photo credit: Moyan_Brenn_BE_BACK_on_10th_OCT)

Our H-1B worker readers are probably familiar with employers recruiting foreign workers holding OPT/CPT as an alternative to H-1B employment.  Some employers do this to avoid the restrictions that come with H-1B visas, such as having to pay the required wage to H-1B workers at all times, even while between work projects or on the “bench.”

But OPT/CPT isn’t the only visa tool employers are using in lieu of the H-1B. The attorney authors of this blog are aware of some companies that we believe have used the J exchange visitor visa program to recruit workers in J status as part of a scheme to later underpay them as H-1B workers.

Like the H-1B, the J visa also authorizes foreign nationals to work in the United States, but without the professional work and wage requirements of the H-1B. The J visa is for participants of a U.S. government approved work program. The various programs include offerings for: au pairs, scholars, camp counselors, students, interns, physicians, and trainees, as well as a summer work-travel program, where participants work for employees with seasonal needs, such as at summer resorts.

Some workers are recruited by unscrupulous employers to work (say, at a summer resort) in J status. When their J visas expire, the employer will then offer to sponsor the workers for H-1B visas. Such workers may be told they are being offered an H-1B professional level position which carries a prevailing wage that is higher than the wages they have received while in J status.

But when the workers of such an employer show up for their jobs in H-1B status, the employer tells them they will be working lesser-skilled jobs than that for which they had their H-1B status obtained, and they only would receive the same lesser salary they were earning while in J status. Employers may promise the workers that the lesser-skilled jobs (falling short of H-1B standards) are temporary, or that the workers may be promoted “soon,” and later receive the full wages required under the H-1B program. But “soon” may never arrive with such an employer, and the workers may continue to be underpaid. Employers who participate in schemes like this are violating the H-1B program laws.

In short, it is unlawful for a company to use the J visa program to recruit foreign workers to come to the United States, and then– once the workers are hooked on their jobs– to switch the workers to the H-1B visa program, and underpay them based on old J – level wage requirements.  Employers who do this rely on the workers’ job dependence or their ignorance of the difference between the J and H-1B program requirements.  The workers fall victim to the employer’s promises of better jobs and higher salaries in the future, which the employer uses as means to get the workers to endure underpayment, and not complain about the employer’s H-1B law violations involving underpayment and lesser work assignments.

If you have been a J visa holder and are later asked to work in H-1B status, be aware that your rights, duties and obligations change. H-1B visa holders must be paid a specified wage and can only work in the position for which their H-1B was authorized.

If you were in J status and are now working in H-1B status doing the same job for the same wage rate as you were while in J status, you should review your H-1B petition and Labor Condition Application (LCA) to be sure you and your employer are complying with the H-1B program requirements.

If you are being underpaid, working fewer hours than promised, or being assigned to work in a capacity that is different from that stated on your LCA and in your H-1B petition, you may be eligible to pursue claims against your employer. You should seek competent legal advice promptly to avoid losing your legal rights and missing any filing deadlines.

For more information about legal services we offer to H-1B employees, see our page here: http://h1blegalrights.com/legal-services-for-h-1b-employees/