H1B Bench Policy FAQs

FAQs about H1B bench policy

Kartik just arrived from the India to the USA at his expense with a very high hope. He knew that the America is the land of opportunities; he has seen multi-story buildings in the Hollywood movies and dreamt about owning the BMW or the Audi car. And, he started to think that this is it! My dream will soon turn into the realities.  With the surprises and frustrations,  many of these high-tech workers dreams get shattered in the first month itself.

Whenever Kartik’s USA based friend told him that he is on the bench, Kartik visualized the following picture in his mind.

IT Person seatinng on bench

Pretty much a wrong visualization. Isn’t it ?

1. what’s being on Bench on the H1B visa means?
Benching refers to workers who are in nonproductive status due to a decision by the employer, such as lack of work or a work permit. And in a case of H1B visa person being on the bench means that technically he is employed by H1B visa employer yet s/he is not working. And of course, the H1B employee is not responsible or considered to be at fault in such situation.
2. Why s/he is not working or in a non-productive status?
Because the majority of the IT companies who hires the IT talent from overseas to work in the USA on the H1B visa. These companies do not have in-house development/project related to the IT, and these companies make money by selling the services of these IT experts to the other American companies. Now such type of assignment of working at the other American companies are not life long, and typically it lasts six months to a year. And, for few lucky one’s, the IT project assignment may last for many years. When this temporary assignment comes to an end, the IT expert reports back to his H1B employer with a hope that his or her H1B employer will find him/her a new assignment or job. The time spent in finding and then reporting to the new job is called the being on the bench. The employer who solely relies on selling H1b visa professional’s IT services to another company is known as the consulting employer.
3. Am I a full-time employee of my H1B visa sponsoring company or not?
Yes! You are a full-time employee of the company who sponsored your H1B. But, you provide your consulting services to the client of your H1B employer. Your role at the client/customer location changes from full-time employee to the contractor. At the client site, you are referred as a contractor (meaning temporary assignment). H1B employer is responsible for your salary,  hence you area always considered as a FULL-time employee of your H1B employer.
4. Why should I even be worried about the bench period?
During the bench period, the H1B employee does not get paid the monthly salary by their H1B employer. And there are dirty tricks played by the H1B employer not to pay you during bench period. Please note that it is a law that H1B visa employer must pay the full salary regardless of the bench period.
5. When Bench period occurs ?
  • It occurs at the beginning when you are very new in the USA.
  • And, when the IT project assignment ends and now you are waiting for the next assignment.
6. Whether H1B employee need to work during bench period ?
Technically, no work can be assigned by the H1B employer ( consulting company), because they do not have any in-house IT projects going on. The H1B employer makes money by selling the IT services to other businesses. Even if H1B employee wants to work, but there is no such work. Some employer does utilize consultant ( H1B employee)’s time to get their website up to date and train their junior employees.
7. What H1B visa employee on the bench does?
The H1B employer works very hard to find the new assignment, and the H1B employee attends tons of interview by phone. See the picture below that pretty much describes everything!

Indian Consultant attending a phone interview

8. Whether H1B visa employee is eligible to receive the salary on a bench?
By all means, your H1B visa employer is supposed to pay you the salary. Once you entered to the US pursuant to your current H1B visa , and you made yourself available for work to your H1B employer within 30 days of entering the US, and hence the H-1B employer’s obligation to pay wages began on the day you made yourself available for work or otherwise came under your employer’s control, such as reporting for orientation or studying for a licensing exam. In fact, these activities itself described as entering into the employment !!
Enter into employment occurs when H1B workers first make themselves available for work or otherwise come under the control of the employer, such as by waiting for an assignment, reporting for orientation or training, going to an interview or meeting with a customer, or studying for a licensing examination, and includes all activities thereafter,
9. I feel shameful to ask for the salary during bench. Isn’t it even illegal to ask for salary when you have not even worked?
Your employer is not running a charity. In fact, your H1B employer has attested to the fact that you will be paid regardless of the bench. If you cannot believe it, then read this article, Know your rights as H1B employee. If your employer does not have any shame in violating the law of the USA why you should be shameful for requesting to honor your legal rights?
10. I am on H1B working on 80-20 formula, should I expect a salary on the bench?
Most likely not. The smart employer would have your employment agreement modified in such a way that you (the employee) do not get paid during bench, and yet it does not cause any law violation issue. But if your employment agreement has not been modified yet then you must be paid the salary on the bench. Read more about 80-20 Formula here.
11. I ran a search on dice.com, monster.com and there are thousands of jobs available in my technical skills. It means that I wouldn’t have any bench period. Correct?
Whenever an H1B visa applicant asks a bench policy related questions to his/her H1B visa sponsoring employer. The typical answers would be something like “Kartik, your question about bench period is very much appreciated. However, in our company there will not be any bench period. Many companies are looking for the IT experts like you. You can verify the authenticity of this claim by running a search on Java Developer on dice.com or monster.com. Hence, your question about salary during bench period is far-fetched at this point. However, we just want to let you know that we do pay full salary during bench. Feel free to get back to us if you have any questions or concerns”. In reality, one job requirement is posted by many consulting companies, and hence it creates a perception as if thousands of jobs available. Also, not all job openings would accept a person on the H1B visa status. There are certain jobs for which company does not want contractor (a temporary staff). The company wants someone with Green Card, US Citizen, etc. The majority of job sites are strict against advertisement which encourages discrimination based on the individual visa status. Hence, such requirement ( that we will not hire the H1B visa worker) in the job advertisement is not listed there. And, it creates the wrong perception in the mind of the H1B employee that probably s/he can apply anywhere in the USA.
12. Since there are thousands of job available in my IT skill set, I will not have any issue in finding the job. Correct?
Dream on! You will be competing with hundreds of the other DESI (H1B visa holders!) having the similar skill set like yours. However, competition will not be as much fierce and intense as in the India. And, if you have an excellent communication skills and have the right skill set with the right knowledge, there are countless opportunities for you.
13. Wait! When I was in my home country, I was told that I would be offered some training and there is a hot demand for my technical skills. And, there will not be any bench period. What happened to that?
That’s the only way to bring you to the USA, by prepping you up like a goat, feeding you with the perception just to put you through the experience of the sacrifice (which would be no salary or minimum salary) during bench period. And, if your employer is super confident about it, ask them to provide a separate letter notarizing the fact that no matter what happens you will be paid salary and benefits as soon as you arrive in the USA. This will be a real test of the employer as well.
14. When my visa processing was going on, my employer told me that they would train me in Big Data and there is a ton of requirements for Big Data expert. In fact, they are telling me that we need you here as soon as possible. It means there will not be any bench period. Correct?
It is too good to be true unless your employer has some in-house development project going on. Not a single project requiring a temporary staff would wait for someone to join after six months. If your employer is 100% confident than ask him to provide a notarized statement that there will not be any bench period.
15. How can I find out whether my visa sponsoring employer deals with the consulting style employment only?
Consulting style job means working from one project to another project at the same or the different companies. It is not an easy way to find out that the company who has offered you a job is truly a consulting style employer or has some real in-house development project going on. Many  H1B visa sponsoring employer may say that we have in house projects to keep you occupied. If your visa sponsoring employer is Indian/Asian then in the world of teleworking (work from anywhere) why this employer needs you physically in the USA where the same job can be done by a person in India at a much lower price? It is a paper based maneuver to please the lawyer and the United States Citizenship and Immigration Services (USCIS).
16. My employer did mention some in-house projects in my visa application to prove to the USCIS that they cannot find the person with a technical talent like me. Is it true?
If your employer is strictly in the business of selling your IT expertise to other companies than it will be rare that you would work on an in-house project. And, the offer letter that is provided to you is very much generic, it contains all the keywords that United States Citizenship and Immigration Services (USCIS) would like to see in the offer letter.
17. My H1B visa employer says that I took care of your lodging, boarding, high-speed internet and the cell phone service when you came to this country. These perks worth more than a month’s salary. Is it true?
It is NOT true. In fact, your H1B visa employer is trying to make you feel obligated, and please don’t fall into this trap. Read more about lucrative Traps of H1B visa sponsoring company. Instead of staying at your H1B visa employer’s place at employer’s expense, request the employer to give the full salary instead of those so called benefits of free stay. You will save the money by choosing the salary option. If you have only 2 or 3 weeks of the bench period in the beginning or in between, your employer would just say that you forget the salary during this bench period, think positive and we got you the new assignment. Forget the past and focus on future. Don’t buy into it.
18. The salary listed in my visa application and the offer letter is less, should I negotiate it during bench period?
Any requests to increment current salary during the bench period will fail because consulting employer has not placed you so far. One should negotiate after getting selected for consulting assignment.

19. If I am on a bench, can’t I work for the other employer?
You need to transfer your H1B visa to “other employer.” And, to transfer your visa to that “other employer”,  the other employer need to show that there is a consulting assignment waiting for you to join or there is a manpower required for their IT development project, etc… Fresher (those who just came to the USA and starting out in this country) will have a hard time satisfying the requirement for H1B transfer.  Because,   one of the key requirement for H1B transfer is that you (the fresher) need to show the most recent paycheck (salary slip) from your USA based H1B employer. Since you are new in this country and most likely your H1B employer has not run your payroll. It is going to be very tough for the fresher to obtain the required documents. Please see paycheck purchasing scheme.
20. Can’t I start working in the hotel/motels and do some odd time job while looking for the next IT assignment?
Yes, you can as long as the respective person is willing to pay you in cash. It is possible. And, there are many IT professionals who end up working in hotels and grocery store to keep feeding himself while looking for the right opportunity in the IT field. Remember that H1B visa is employer specific; you can work only for the particular employer who sponsored your H1B visa.
21. Can’t I complain to the appropriate authority and take action against an employer who refuses to pay the good salary during bench?
Yes, you can. But do it under the advice of a competent lawyer. Please do not solely rely on some blogs/forums, even us! All we can tell you is that there is a way that you can take action and get your salary retroactively paid to you. But it takes the courage and hiring a competent lawyer to present you. Do you have that courage? Also, if you are new in this country than most likely your employer will threat you, and you wouldn’t have any clue what to say and not to say.

22. What happens if I stay on the bench in the USA for an extended period?
You are considered out of status. And, it is possible that you may end up purchasing paycheck to move on to the next employer.
23. What is out of status?
As long as the employer/employee relationship exists, you are still considered “in status”. An H-1B employee work in full or part-time employment and remain in status. And H1B employee may also be on vacation, sick/maternity/paternity leave, on strike, or otherwise inactive without affecting his or her status.
When your employer does not pay you the salary, you are technically out of status because employer-employee relation was not in existence. But most likely your employer will help cover your butt as well as his cover his butt!! The employer puts you out of status but then he covers up his tracks by saying that you were on unpaid vacation, sick, etc., and hence no salary was paid during that period.
24. Why does employer need to cover the tracks of non-payment of monthly salary?
Because legally the H1B visa employer must pay the salary. During bench, the majority of H1B visa employer do not pay any salary. And they violate the law by not providing the benefits and salary that you are expected to receive. You must know H1B employee’s rights. But whatever your employer did is a punishable offense with a jail time up to 15 years. And, your H1B employer knows the possible penalties and fine, that’s the reason these scumbag H1B visa sponsoring employers ensure that they cover those tracks (illegal activities) with a perfection.
25. What tricks H1B visa sponsoring companies use to cover up the tracks?
We have written the entire article on it. Please read Scenarios where H1B employee does not receive their monthly salary.
26. Whether being out of status because of the bench is a good thing or bad thing?
First and foremost employers are not allowed to bench H-1B visa employees. Employers who seek H-1B visa employees must pay them prevailing wages or actual wages whichever is higher consistent with the H-1B visa petition that was filed on their behalf. More recently, the issue of benching has become more prevalent lately. Being benched inhibits the H-1B alien from being able to transfer his H1B visa to another employer as the alien is unable to show pay stubs which in turn will make it difficult to prove that he has maintained lawful status.
27. Is there any solution to the above – being on the bench?
There is a solution of transferring the H1B visa of a benched H-1B employee. Since the rules clearly state that employers may not bench H-1B employees and upon discovery of this by the US Department of Labor the employer will be forced to pay the employee back wages, it follows that the H-1b holder remains employed during the benched period. The lawyer must collect sufficient evidence to prove to the USCIS that the alien was benched against his will and argue that the employee, consequently, remains in a valid status during the bench period. Skillful and experienced immigration lawyers know how to present the correct evidence to the USCIS to prove that the H-1B employee mitigated his damage by seeking H1B transfer timely, that the employee was not at fault for being placed on the bench, and finally to present the correct legal arguments to protect the interests of the employee. A consultation with immigration lawyer will help a ton in this matter.
28. If I complain against my greedy employer, wouldn’t this cash rich employer retaliate back?
Retaliation
The regulations have introduced specific provisions encouraging H-1B visa aliens to report their employers for violations. The same regulations also prohibit the same employers from retaliating against those employees who so report them. When an employer retaliates against an employee for filing a complaint against it, the regulations allow the employee to safely transfer his or her H-1B status to another employer without repercussions. It is important to note that USCIS guidance memorandum on this topic requires documentation of the retaliatory actions taken against the employee and the original complaint filed by the H-1B holder. Hence get an advice of a competent lawyer rather than manipulating the laws in your favor.

29. I worked for an H1B visa employer who kept me on a bench for three months, now my H1B is with another employer, I would like to receive the salary back. Since technically I was out of status during those three months with my previous employer, I am pretty much fearful that complaining about this greedy company will put my green card/ H1B transfer in big trouble. What should I do?
You should seek the advice of the competent lawyer.
30. By reading this article, I am inspired to get the salary back for the H1B employer for whom I worked five years ago, can I do that?
You should seek the advice of the competent lawyer.
31. I am scared by reading this article. Are you saying that all H1B visa employers are like that?
Please read the good characteristics of H1B visa employer. And, there are very good consulting H1B visa employers out there who keep paying their H1B employee during bench also. Some have the upper threshold limit such as we will pay you 1-month salary only and after one month you are on your own etc. In a nutshell, go with those employers (like Agile Attributes) where company pays 100% of the salary during bench and always remain in compliance with the law.
32. Why are you telling that seek advice from a competent lawyer because it seems pretty obvious to me that my H1B employer violated the law and must pay me the salary during bench period?

Indian Consultant attending a phone interview

Because you don’t have a lawyer at your finger tip, but your employer might have. Also, your H1B visa sponsoring company would be smart enough to cover those tracks.

  • You may not have a documentation of being employed when you arrived in the USA. When you came to the USA, did you notify your employer by certified mail ( in India it is known as Registered A.D ) that you are in the USA and willing to work, and you are ready to join and honor the employment agreement and start working.
  • Did you notify your employer by certified mail when your temporary assignment at client side got over, and now you are waiting for the next assignment from your H1B visa employer?
  • Did you have proof ( your manager’s letter of reference etc.) to prove that respective project came to an end and it was not your fault?
  • Do you have any email trail proving that your request for bench salary was denied?
  • The lawyer would also ask the similar questions. If you don’t have any trail generated than your employer will simply say that we were notified by H1B holder that s/he would like to take unpaid time off to do certification and enhance his knowledge !! You need to learn to outsmart your greedy employer.

33. If the majority of the consulting employers abuse the law and yet no such significant complaint is occurring. In fact, whatever I am reading in this article is too good to be true. Why is that?
Action Changes Things

  • The foreign worker who came to the USA lacks the expertise in dealing with the greedy employer. Also, these IT professionals can write a sophisticated algorithm, but the interpreting law is not their forte. It needs the courage to stand up against what’s wrong and require a lot of patience.
  • The majority of H1B employee (a high-tech professional) has often come across the wealthy and powerful businessman and politician abusing the law in their home country, and they watched that nothing happened to them. They feel it same for the USA also (which is wrong).
    After all, these professionals came to the USA to work and earn money not to start litigation, so they just let it go. In fact, many H1B employees experience law abuses. They don’t utter a word against their H1B employer because these employees themselves are greedy (just like their H1B employer) and impotent. These employees think that why to invite some troubles or struggle just to get few thousand dollars back? They don’t believe in raising voice against greedy employers, and such behavior allows  H1B employer to abuse the law. And,  by not sharing the experiences with such employer(s) to the rest of the world , these H1B employees indirectly protects the greedy employers and allow other fellow H1B employees to go through the similar negative experience.
  • These H1B employees don’t even raise awareness as if these law abuses is no longer a problem for them. The moment the H1B worker finds the another employer the previous employer and previous employer’s H1B visa law abuses becomes a past.    Although, previous employer can not harm the future green card and H1B visa of the employee, yet in the absence of a legal competent advice, these greedy H1B employees think that the previous H1B employers will cause issues in their current or future green card and H1B transfer. Hence, they keep their mouth shut.
  • The major cornerstone of working in the USA for H1B employee is to earn money, but they easily forget their bench salary, and other law abuses. These employees do not want to spend some money upfront by seeking competent advice. And the same people will think twice to donate $100 to charity, but they have done charity to their cash-rich employer by not requesting to honor their legal rights.
  • These H1B employees can write a sophisticated algorithm and build a fancy website, yet failed to realize that an upfront investment of somewhere around $200-$500 to seek advice from the lawyer can help them recover 20-30 times more amount in monthly salary that s/he lost during the bench period.
  • It is also possible that when a notice is sent from a lawyer, the H1B employer immediately bends down and pays back the salary and ask to sign a Non-Disclosure Agreement (NDA). Signing NDA  means that neither H1B employer nor H1B employee will make this information public and discuss with someone else! However, such employee could have easily started a blog or website like visaxp.com. But nope, who Cares?
  • If we ask them to share this website with friends, they will shy away from it because they don’t have guts to spread the awareness. But if you do (have guts!), please share this website on Facebook /Linked Inn / Twitter and help raise the awareness.

Now, you are aware what the bench policy means, what are your rights, what you can do? We know for a sure that neither you are going to take any action against your greedy H1B employer nor you are going to tell us in the comment section ( although we would be jubilant if you would ). But one thing you can do is raise the awareness, and what many H1B employees have suffered, please don’t let other H1B employee goes through the same misunderstanding and pain.

Like this article? Isn’t it filled with the heavy and hard to swallow a dose of realities? Please spread it on Facebook/Twitter/Linked In and start making the difference. It will not cost you anything other than few mouse clicks!

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