By: Hasan Abdullah, Esq.
An all too common question that immigration law attorneys dealing with H1B cases encounter is whether it is possible for an H1B worker to port his or her employment to a new company if this worker does not have recent pay stubs.
Consider the example of R.S. Singh. After Singh graduated with distinction from a reputable Indian university, he was offered a job by a US consulting firm, YKK Infosys, promising to pay him $60,000 a year as a systems analyst. YKK filed his H1B petition with the US Citizenship and Immigration Service, and the petition got approved. Shortly thereafter, Singh obtain his visa and gained admission to the US.
As soon as Singh arrived, willing and able to work, the employer put Singh on “bench” without pay. He was told that he would only be paid if he was placed on a project. The employer took some initiative to market him to potential client companies with no success. A few months later, through Singh’s own job-hunting efforts, he found a project and was finally put to work… for 4 months. During those 4 months of work, Singh worked 50-60 hours a week, produced excellent quality work, but was paid a paltry $2000 a month – well below the prevailing wage of a systems analyst. Of course, YKK was skimming their share of several thousands of dollars from the client. Once again, Singh would have to look for work while his employer paid him nothing.
As bad as the above scenario seems, in some cases, it has been observed that companies run an audacious scheme in which they charge a thousand dollars or more to the foreign worker just to file the H1B, and if approved, they charge several thousand more dollars to file for the visa to bring them in. Returning to our example, months later, Singh finally found a legitimate employer who offered to port his H1B employment. The new employer’s immigration attorney requested that Singh provide his pay stubs for the past three months to show proof that he was maintaining his H1B status.
Singh replied that he had none, and was worried that he was out of status as a result. Unfortunately, many H1B workers do not realize they have a lot of power with the law being on their side, and quietly endure months of hardship. They fear that if they complain too much, their employer will just notify USCIS that the position is terminated, and force the worker to return to their home country. In reality, as an H1B worker, Singh has the opportunity to file a complaint to the Department of Labor to obtain unpaid wages, and can use this complaint in lieu of pay stubs. This gives any illegally benched employee a lot of leverage against his unscrupulous employer. Consider the following liabilities that YKK would be potentially subjected to: