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Is Your H-1B Employer Treating You Fairly and In Accordance With U.S. Immigration Laws? - Part 2

In a previous article, we explained an H-1B employer’s obligations regarding wages, in particular the obligation to pay an H-1B employee the greater of the prevailing wage or the employer’s actual wage for the position. In addition, we addressed the H-1B employer’s obligation to pay the required wage cash in hand, free and clear, when due, without making unauthorized deductions. In this article, we elaborate on an H-1B employer’s obligations regarding wages.

H-1B employees may be salaried or hourly wage employees. For salaried employees, wages are due in pro-rated installments paid no less often than monthly. For hourly wage employees, the required wage shall be due for all hours worked at the end of the employee’s ordinary pay period, but in no event less frequently than monthly.

H-1B employees must be paid for any time spent in nonproductive status. Nonproductive status refers to time spent by the H-1B employee not performing work due to a decision by the employer. It does not include time spent not performing work due to conditions unrelated to the employment. A full-time salaried H-1B employee in nonproductive status must be paid the full amount of his/her weekly salary, whereas a full-time hourly wage H-1B employee in nonproductive status must be paid for 40 hours work per week (or such other number of hours that the employer considers full-time). A part-time H-1B employee in nonproductive status must be paid for at least the number of hours indicated on the H-1B petition filed by the employer. Where the H-1B employee’s hours were listed as a range on the H-1B petition, the nonproductive H-1B employee must be paid for at least the average number of hours normally worked provided that this number is within the range indicated.

For example, suppose a Software Developer in H-1B status at an information technology company normally works 25 hours per week. Suppose further that the Software Developer’s hours were listed on the H-1B petition as 20-30 hours per week and that the offered hourly wage rate was listed as $29.55. Now suppose the H-1B employee requested and took one week off (over and above his/her paid vacation) in order to tour the U.S. Under these circumstances, the H-1B employer is not required to pay the H-1B employee for that week given that this was time spent not performing work due to conditions unrelated to the employment. By contrast, suppose the H-1B employee was not assigned any work i.e. was “benched” for one week. Under these circumstances, the H-1B employer is required to pay the H-1B employee $29.55 per hour for 25 hours on the basis that the time spent in nonproductive status was due to a decision by the employer.

An H-1B employer must start paying the required wage beginning on the date the H-1B employee “enters into employment” with the employer, which refers to the date the H-1B employee first makes him/herself available for work or otherwise comes under the control of the employer. However, even where the H-1B employee has not yet entered into employment with the employer, an H-1B employer with an approved H-1B petition must start paying the beneficiary beginning thirty days after the date he/she is first admitted into the U.S. pursuant to the petition or sixty days after the employee first becomes eligible to work for the employer.

For example, suppose the IT company filed an H-1B petition on January 1st on behalf of the Software Developer who is already in the U.S. in H-1B status. The Software Developer first becomes eligible to work for the IT company on January 1st pursuant to the H-1B portability provisions of the American Competitiveness in the Twenty-first Century Act of 2000. Accordingly, the IT company must start paying the Software Developer on March 1st even if the Software Developer has not yet made him/herself available for work. In that event, however, the IT company is of course free to file a request for withdrawal of the approved petition.

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