H1B Visa Lawyer Blog

The H-1B nonimmigrant visa program is designed to allow alien beneficiaries to enter the country and begin working for a U.S. employer for a period of three years. The sponsoring employer or a new employer may renew the H-1B visa for another period of three years. In other words, the Immigration and Nationality Act (INA) regulations clearly allow for the recipient of an H-1B visa to be in H-1B status for a total initial period of six years. The alien beneficiary may then return to his/her home country, remain there for one year, and only then will they be eligible to apply for another H-1B nonimmigrant visa.

However, there are ways to extend H-1B visa status beyond the six year limit. The Vermont Service Center (VSC) Liaison Committee has provided the following guidance for extending H-1B status beyond the six year limitation. If the alien beneficiary has completed one of the following conditions, they are eligible for an extension beyond the sixth year as long as one of the listed conditions have been met prior to the alien’s requested start date:

(1) 365 days or more have passed since the filing of any application for labor certification; and the labor certification, if approved, has not been revoked, is unexpired, or has been timely filed with an EB petition within the labor certification’s validity period; or (2) 365 or more days have passed since the filing of an EB immigrant petition that is still pending; or (3) The alien is the beneficiary of an approved EB immigrant petition and is not able to file an adjustment of status application or, if such application has already been filed, is unable to adjust status due to the unavailability of an immigrant visa number.

An Administrative Law Judge (ALJ) of the Department of Labor (DOL) recently ordered the employer of an IT company to pay the alien beneficiary’s unpaid salary for the full term of the H-1B visa with interest, an amount for his monthly health, dental and vision insurance benefits, an amount for his unpaid annual 401(k) contributions with interest, his litigation travel expenses, and ordered the return of his work experience certificate and H-1B extension approval notice.

The Petitioner filed an H-1B nonimmigrant petition on behalf of a Chinese national to work in an IT specialty occupation. The filed H-1B petition contained a certified Labor Condition Application (LCA) which detailed the salary the alien beneficiary was to be paid and made several other attestations that the employer acknowledged. The H-1B program contains strong provisions to ensure that U.S. and foreign workers are protected. Employers must guarantee that U.S. workers will not be adversely affected upon the hiring of an H-1B professional. For instance, a U.S. employer using the program must also guarantee that (1)the foreign professional will not adversely affect the working conditions of U.S. workers; (2) the foreign professional will be paid the greater of the job’s actual wage rate or the prevailing wage rate throughout the entire period of authorized employment; (3) U.S. colleagues will be given notice of the foreign professional’s presence among them; (4) there is no strike or lockout at the worksite; and (5) the position requires a professional in a specialty occupation and the intended employee has the required qualifications.

The problem arose when the alien beneficiary received no work and no pay. The alien beneficiary came to the United States to seek work in a specialty occupation; however, the investigation conducted by the DOL illustrated that the petitioning company never really had any work for the alien worker. The evidence indicates that the petitioning company brought the H-1B worker to the U.S. intending to contract his labor out to other entities, rather than to use the worker’s labor directly in the business. With this plan, the petitioning employer was more of an employment broker than a traditional employer, and would not pay the worker until it collected the money from the entities that actually utilized the worker’s professional skills. This practice is often referred to as “benching.” Benching is a violation of the Immigration and Nationality Act (INA) and accordingly forbidden by the H-1B nonimmigrant visa program. The alien worker was in the U.S., not working and not receiving any type of salary, health insurance or other benefits that were guaranteed by his employment contract and by his signed and certified LCA. The record shows that the alien worker kept in contact with several of his employer’s staff and was never told that his work was inadequate or that the employer intended to terminate his employment.