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H1B: Employer not paying salary in settlement after resigning

Jersey City, NJ |

Consulting company XYZ was holding my H1B. I was working at client place and I was getting 80% of billing rate and my employer was keeping 20%. Now I transferred my H1B to ABC comp. My employer has paid me salary as per LCA in settlement, but there is huge difference in LCA salary and my actual salary as per my billing rate and I did lot of overtime. So this diff is around $15000 which my company is not ready to pay even though I served two weeks notice period and not breached any contract.

My company was third party for that client and there was another vendor in between. That vendor has not paid $5000 and my company is not paying me $5000.

I am going through lot of stress becz of this. Kindly advice what can I do? Can I report this in DOL or sue them for stress and exploitation?

Attorney Answers 3


Consult with a labor law attorney at once regarding the merits of compelling your employer to reimburse you on the earned funds on merits.

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Hire an attorney to represent you in recovering any money owed to you.

Mr. Asatrian's practice is dedicated to the area of immigration and nationality law. Please note the information provided herein does not constitute legal advice and should not be construed as such by anyone. It should not be relied upon as legal advice as more specific facts, research and analysis may be required to formulate a proper strategy and action in your matter. Please note this does not create an attorney-client relationship whatsoever. You should seek the assistance of an experienced immigration attorney to review your matter thoroughly and gather all of the necessary information and documentation to provide you with the best possible legal solution.

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Yes you can and should file a complaint with the DOL. The DOL cannot act on complaints based upon events which ended more than a year before the complaint was filed.

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Thank you all for your valuable inputs. My employer told me that if you report this to DOL then you will be in trouble because you can't report 80% 20% model issue to DOL and we paid you what is mentioned in LCA. I didn't know that 80% 20% model is not allowed and my employer misguided about this fact and hired me by telling that we will pay you 80% of billing and now they kept all money that I should get. I have many evidence that they were paying me on 80% 20% before resignation. Kindly advice me if I can still report this to DOL.

Michael E. Piston

Michael E. Piston


The LCA regulations require that the employer pay you the actual wage. If you can demonstrate that the actual wage for your position is 80% of the billing rate, then the employer should be required to pay you that amount, regardless of the wage written on the LCA. In any event, even if your complaint doesn't succeed you won't be in trouble - the worst that can happen is that you simply don't get the back wages you believe you are entitled to.

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