Wilner & O'Reilly, APLC
One Practice. One Focus. One Passion: Immigration Law.

DOL awards H-1B workers back pay from U.S. employer, owner

Two H-1B employees with H-1B visas have been awarded more than $291,000 in back pay, application fees and interest after their employer failed to allow them to work and to pay them. This ruling is a clear reminder to California employers and employees alike that immigrant workers with H-1B visas must be employed and receive payment.

According to the case which went to the U.S. Department of Labor, a company sponsored the two workers for H-1B visas but did not employ or pay them after they made themselves available for work. After the judge determined that the workers were benched, the company and its owner were ordered to pay the workers' wages for as long as their work visas are valid. In addition, the company and its owner must repay the immigration application fees that each worker provided as well as pre- and post-judgment interest.

Workers who are eligible for an H-1B work visa are those who have a relationship with their potential U.S. employer. They must also have at least a bachelor's degree or the equivalent typically required for the job, required by the employer for the job or required to perform the duties that the job entails. Additionally, the job has to be in a specialty occupation that is related to their field of study, such as math, business, engineering and technology.

Employers are prohibited from benching H-1B workers, and they cannot avoid paying them because they lack a permit or license or because there is not enough work to do. H-1B workers must be paid the prevailing or actual wage for their occupation.

H-1B employees who experience benching or do not receive wages could seek help from employment immigration attorneys to seek the earnings that they expected to receive. The attorneys may help them gather and file the documents required for a claim against their employers.

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