H-1B Employees and Benching

Workers who are not entitled to immigration status in the U.S.A. still have certain rights and some protection is offered under regulations administered by the Department of Labor (DOL) and immigration laws. Non-immigrant workers who have been given H-1B status should know about benching. Benching sometimes takes place when the H-1B visa worker’s employer ceases to pay their wages.  Sponsoring employers have to pay H-1B employees throughout any time when they are not productive, with limited exception. Benching takes place when an employer decides to temporarily place an H-1B visa status employee on non productive status because of insufficient work being able or the employee not having a license or permit to complete a job task.

By law, employers can only stop paying out wages to H-1B employees if their job status has been terminated, or certain other narrow circumstances. See 20 CFR 655.731.

How should H-1B employees be treated by their employers?

An employer is expected to follow certain requirements in relation to their H-1B visa status employees which are as outlined below:

• The employer is expected to make wage payments to the H-1B employee that exceed the wage it pays to other employees who have similar qualifications and experience or the prevailing wage for the job.
• The employer must guarantee that by employing an H-1B worker this will not negatively affect other employees working conditions.
• The employer must guarantee that no lockout or strike will take place which involves the H-1B employee’s petition at his or her place of work.
• The employer must give notice when filing the ‘Labor Condition Application’ to the specific representative who is involved in the employee’s collective bargaining for the particular H-1B job. 
• The employer must keep in order specific documents for possible examination which include: a copy of the ‘Labor Condition Application’, proof in document form of the H-1B employee’s salary, a breakdown of how the person’s wage was calculated, and documentation showing the use of the prevailing wage
• The employer is required to agree to pay to the alien the cost of returning to his or her country if the employment is terminated before the expiry date of the H-1B visa status. 

The DOL states that H-1B workers have to be paid the correct wage for any work time that is not productive time because of employment related conditions at the time. This includes insufficient assigned work, lack of a permit or undertaking study for a licensing exam. When a potential employer files on the behalf of an expected employee an H-1B petition for that worker, he or she will also submit a ‘Labor Condition Application’, indicating to the government that the employee will be paid the prevailing wage for that particular job in the specific geographical area.

If an annual plant shutdown or compulsory holidays takes place which has an effect on both the U.S. and the H-1B workers, the H-1B employees have to be paid the appropriate wage even when the U.S. worker is unpaid. If the employer fails to follow this directive then the DOL may conduct an investigation which could result in monetary compensation being awarded to the employee.

There are good reasons for monitoring benching. There is a concern that employers may regularly not pay the expected wage or bench overseas workers so that costs can be cut. The DOL wants to make sure that job opportunities for U.S. workers and wages are protected. If employers think they can get away with paying their H-1B workers below the prevailing wage for a specific job, it could be to the detriment of the U.S. employees’ job market in that particular field of work.

The employer is not held responsible for lost wages if the lack of payment was because of a voluntary request by the worker which includes taking leave during normal working hours. An example is when the employer has failed to pay wages to an H-1B employee if he or she takes additional time off apart from the agreed maternity leave.

Return to "The H-1B Visa" to learn more.