Know your rights as H1B employee

Know your rights on H1B visa employer yourself Many H1B employees thinks that just like their home country they do not have any rights while they work in the USA! But they are dead wrong! Surprising facts are these employees do not know their rights as H1B employee in USA. And even if they do , most likely they don’t know how to interpret it.
This article is based on http://www.dol.gov/wecanhelp/h1bworkers.htm.
The language from the above article is mentioned below . We have not made up this law it is directly coming from US Department of Labor.

Your rights as non-immigrant entering in USA on H1B visa

Temporary non-immigrants who enter the United States with an H-1B visa and work in specialty occupations or as fashion models have the following rights.

Wages/Benefits: You must be paid the actual wage, which is the same wage rate your employer pays other workers with similar experience and qualifications, or the local prevailing wage for the occupation in the area of intended employment, whichever is higher. You must be paid for non-productive time caused by the employer or by the lack of a license or permit; and you must be offered fringe benefits on the same basis as offered to U.S. employees.

Illegal Deductions: Your employer may not require you to pay, either directly or indirectly, any part of the petition filing fee; or to pay a financial penalty for leaving employment before a date set in the employment contract; or to pay employer business expenses (such as attorneys fees for preparation and filing of the H-1B Labor Condition Application).

Working Conditions:Your employer must provide you with working conditions on the same basis and criteria as provided to similarly employed U.S. workers (such as hours, shifts, vacations, and seniority-based benefits). NOTICE: Your employer must provide you with a copy of the Labor Condition Application.

Records: Your employer must keep records of the hours you work and the wages you are paid. You should keep a record of the hours worked and the employer’s name, address, and telephone number. You may examine the public disclosure documents that the employer is required to keep that provide information about the employer’s compliance with Labor Condition Application’s attestations.

Discrimination: Your H-1B employer may not intimidate, threaten, blacklist, discharge, or in any other manner discriminate against any employee, former employee, or job applicant for disclosing information that is reasonably believed to be violations of H-1B requirements or for cooperating in an investigation or other proceeding concerning the employee’s compliance.

Interpretation of the above rights – line by line – paragraph by paragraph

The first line

In the very first line it says that
Temporary non-immigrants who enter the United States with an H-1B visa and work in specialty occupations or as fashion models have the following rights.

Non-immigrant means person entering with the visa with end date in future and no intention of living forever in USA. Please note that when you enter to USA on H1B visa you are entering on a non-immigrant visa. Your intention of not leaving the country (USA) and applying for a green card later on is completely different story. And, applying for a green card is not a violation of a law or H1B rules.

A “specialty occupation” is defined as “an occupation that requires (a) theoretical and practical application of a body of highly specialized knowledge and (b) attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.”

Wages/Benefits is Your right

Know your rights on H1B visa employer yourself

Wages/Benefits: You must be paid the actual wage, which is the same wage rate your employer pays other workers with similar experience and qualifications, or the local prevailing wage for the occupation in the area of intended employment, whichever is higher. You must be paid for non-productive time caused by the employer or by the lack of a license or permit; and you must be offered fringe benefits on the same basis as offered to U.S. employees.

Wage means salary and you must be paid the same salary as the other person with similar experience and qualification. Local prevailing wage means Prevailing Wage. And it is defined as the hourly wage, usual benefits and overtime, paid in the largest city in each county, to the majority of workers, laborers, and mechanics. Prevailing wages are established, by the Department of Labor & Industries, for each trade and occupation employed in the performance of public work.If you want to dig in to details visit https://www.foreignlaborcert.doleta.gov/pwscreens.cfm
.In a nutshell, understand that you must be paid what you deserve and going rate in the market.

Illegal Deduction is not allowed and strictly prohibited

What it means is that your employer should not ask you to pay, either directly or indirectly any fees for filing your H1B visa or force you to pay financial penalty for leaving them earlier than what they said in the H1B offer letter. Also, employer cannot ask the employee to be responsible for lawyer fee or part of the lawyer fee, courier fee, processing fee, visa fee etc. About Labor Condition Application scroll down for more shocking information :

Working Condition must be fair

What it means is that your employer can not treat you differently than any other American working in the similar job. So you cannot be forced to work over time or cut your vacation days.

Record keeping is a requirement

Records: Your employer must keep records of the hours you work and the wages you are paid. You should keep a record of the hours worked and the employer’s name, address, and telephone number. You may examine the public disclosure documents that the employer is required to keep that provide information about the employer’s compliance with Labor Condition Application’s attestations.

It means that your H1B visa employer must keep the record of the payment to you. And, if your employer is paying you cash ( some do !) ask them to provide the statement that he paid the CASH. Your employer can not say to your request to provide the salary paid so far or type of work you did for that employer.

Employee can not be discriminated and threatened

Know your rights on H1B visa employer yourself

Discrimination: Your H-1B employer may not intimidate, threaten, blacklist, discharge, or in any other manner discriminate against any employee, former employee, or job applicant for disclosing information that is reasonably believed to be violations of H-1B requirements or for cooperating in an investigation or other proceeding concerning the employee’s compliance.

Wow ! You can not be intimidated, threaten, and other manner which would discriminate against any other employee. Here discrimination means they treat and pay the developer X more money and they mistreat and pay less money to developer Y where X and Y has the same experience and X and Y are working within 10-20 miles radius than it is a case of discrimination.

If you file a complaint about violation of H1B requirements , technically your employer can not terminate you because this is not India where the moment you lodge a complaint against your employer and the next thing you know is you are fired !! And the entire food chain can be easily bribed. This is absolutely impossible to do .

Labor laws are very strict. Seek an advice of a competent lawyer in this matter. In fact you can cut the deal with the lawyer to share the certain amount with him for the bench salary that you are expecting it back and asking the lawyer to represent you for free. And , in return you are promising the lawyer ( it will be a written agreement) that you will pay certain portion ( it could be as high as 50 to 60%) of your bench salary that lawyer would be able to recover . If your H1B visa sponsoring company is really big and if you can prove the violation to the above laws probably your lawyer can also seek a monetary damage for mental torture and depression episodes created by your H1B visa sponsoring employer . And, both you and your lawyer may make a big fortune out of it. Have a courage and a solid plan than do it by all means.

Labor Condition Application and Attestation :

Labor Condition Application H1B visa

The Labor Condition Application (LCA) is an application filed by prospective employers on behalf of workers applying for work authorization for the non-immigrant statuses H-1B, H-1B1 (a variant of H-1B for people from Singapore and Chile) and E-3 (a variant of H-1B for workers from Australia). The application is submitted to and needs to be approved by the United States Department of Labor Employment & Training Administration (DOLETA)’s Office of Foreign Labor Certification (OFLC). The form used to submit the application is ETA Form 9035 ( Source : Wikipedia : https://en.wikipedia.org/wiki/Labor_Condition_Application )

Above is a direct copy/paste, and my dear IT friends would have a hard time digesting the above text. So here is what it contains that requires your attention : In section H of your Labor Condition Application ( see sample here http://www.foreignlaborcert.doleta.gov/pdf/eta_form_9035.pdf ) , your employer attests ( Read the Page 4) , it says that YES, I understand and I am going to make sure the following :

Wages: Pay nonimmigrants at least the local prevailing wage or the employer’s actual wage, whichever is higher, and pay for non¬productive time. Offer nonimmigrants benefits on the same basis as offered to U.S. workers.
Working Conditions: Provide working conditions for nonimmigrants which will not adversely affect the working conditions of workers similarly employed.
Strike, Lockout, or Work Stoppage: There is no strike, lockout, or work stoppage in the named occupation at the place of employment.
Notice: Notice to union or to workers has been or will be provided in the named occupation at the place of employment. A copy of this form will be provided to each nonimmigrant worker employed pursuant to the application.

Also some moron employer may say “I didn’t know what it means, I accidentally signed it” Hence where your employer need to sign it also says that 1. I have read and agree to Labor Condition Statements 1, 2, 3, and 4 ABOVE and as fully explained in Section H of the Labor Condition Application – General Instructions – Form ETA 9035CP.
You can check yourself the General Instructions Form ETA 9035CP at https://www.foreignlaborcert.doleta.gov/pdf/eta_form_9035cp.pdf

After attesting all these ( above 1 to 4 ) , if employer willfully violate it, the penalty is significant. The penalty is under 18 USC 1456, which makes it a crime to fraudulently submit any type of visa document or form. So if the employer submits a form with these attestations in the form and then does not adhere to the terms of the form, they have committed fraud in violation of the statute. The penalty is for perjury and punished by up to 15 years in prison under 18 USC 1456. See: https://www.law.cornell.edu/uscode/text/18/1546

If your employer is violating your rights. Just forward this article to your employer and see what s/he has to say. And, if you are too scared to share directly with your employer your H1B colleague at work than spread a word about this article on social media. Last but not the least, if you think that we are cooking the story, and there is no such rights exist, and we are hallucinating ,then do let us know the reality in your own words in the comment section below.

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