Department of Labor Awards Back Pay For H-1B Workers

A series of recently released decisions by the Administrative Review Board of the U.S. Department of Labor again highlights the importance to H-1B employers and employees to carefully document their employment relationship and notify USCIS when that relationship terminates. This is particularly true in employment where "benching" of workers is common, such as the computer consulting field.

The DOL has awarded back pay with interest and civil fines against employers who fail to notify the USCIS after they have "terminated" an employee and in one case back pay was awarded even though the employer notified USCIS of the termination, but continued to correspond with the worker to help her find additional work. Both of these decisions occur in "benching" circumstances.

Benching occurs when an individual who has been approved for H-1B employment is in nonproductive status (i.e. "benched") "due to a decision by the employer." If the H-1B nonimmigrant is nonproductive due to lack of assigned work, lack of a permit or license, or some other employment related reason, the employer is required to pay the wages due under the Labor Condition Application which was filed with the H-1B application. Benching occurs routinely when computer professionals, contracted out to clients by a consulting company, complete the project to which they were assigned. They often remain "unproductive" until a new client is retained. The law provides that the employee must continue to be paid the higher of the actual wage or the prevailing wage during the benching period. This is to be distinguished from the nonproductive status that results at the "voluntary request and convenience" of the employee, such as maternity leave, an incapacitating accident, or a requested leave to care for a sick relative or extended vacation.

This leads to the ultimate question: when does employment "terminate." Clearly, if the employer notifies the H-1B employee in writing that his or her employment will end on a specific date, sends a copy of this notification to USCIS and ceases any further contact with the employee after the specified date, then employment will have terminated on the specified date.

Employers are reminded that USCIS regulations require the employer to notify CIS when the employment relationship has been terminated so that the petition is canceled by USCIS. The employer if further responsible to provide the employee with payment for transportation home under certain circumstances.