During these tough economic times, layoffs are common and employers who hire (or have hired) foreign nationals must be aware of recent actions taken by the USDOL, as well as the decisions by the US Department of Labor.

Employers are permitted to hire foreign national workers in certain occupations under the H-1B visa classification.  These employers of H-1B or H-1B1 workers must meet certain prerequisites, including the wage payment obligations under the H1B and LCA documents.  Therefore, any underpayment of the prevailing wages or nonpayment of wages during bench time may result in a substantial award of back wages and interest penalties.  Likewise, terminations of H-1B employment must be handled carefully, with diligence towards an offer of 1-way airfare to H-1B worker’s home country and notification to USCIS of revocation of the H-1B petition to avoid back wage payment issues.

What happens, however, when employees are “benched” due to lack of work?  Employers must pay the employee’s wage during the employee’s nonproductive status if such status is due to a lack of assigned work, lack of a permit or license, or some other employment-related reason.

If the nonproductive status is due to conditions unrelated to employment which remove the non-immigrant from his/her duties at the employees’ “voluntary request and convenience” or which render them unable to work (i.e., caring for a relative who is ill, maternity leave, or a temporarily incapacitating accident), then the employer will not have to pay the employee’s wage during the employee’s nonproductive status.  Employer will, however, be required to pay employee during annual plant shutdowns or holidays or other events, which affect both US and H-1B workers, even if the US worker is not paid because these events are part of their ordinary course of business.  During this period of time, employers cannot bench or layoff the US worker while H-1B employees continue to work.

How much is the employer required to pay the employee during the non-productive status?  It depends.  The employer is obligated to pay the wage that was designated on the petition.  If the employer indicated a range of hours on the petition, then he or she must pay the employee for the average number of hours he or she ordinarily works.  The employer also should be wary of paying the part-time employee for the amount indicated on the petition if the employee has worked more than the designated part-time hours prior to the start of his or her non-productive status.  Therefore, unless the employer officially terminates the employee’s employment with the firm by (a) issuing a bona fide termination of the employment relationship; and (b) notifying the USCIS that the employment relationship has been terminated so that the H-1B petition can be cancelled, he or she must continue to make diligent efforts to pay the employee during non-productive status, if necessary, to avoid back wage payment issues.

Please feel free to contact The Law Office of Chen Tien with additional questions about H-1B visas or other employment visas.