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H1B yealry salary less than LCA .What are my options

Raleigh, NC |

My current base salary for year 2012 was around 1000 less than specified in Labor Condition Application for H1B. Also if i calculate based on my monthly pay stub its also less than what is specified on LCA.

I have about 1 year of my employment contract remaining.Do my contact remains valid due to above circumstances?.Can i renegotiate or can i leave the company without breaching the contract due to above mention circumstances?

Attorney Answers 4

Posted

If your salary is less than specified on LCA, you are considered to have violated your H1B status. So either change your employer (although transfer could have issues since your pay is less than prevailing wages), or talk to your employer about it. Contact an immigration attorney for consultation to give you a detailed evaluation of your case.

http://www.myh1bgc.com

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2 lawyers agree

Posted

Leave the USA as soon as possible since you are out of status.

The information contained in this answer is provided for informational purposes only, and should not be construed as legal advice on any subject matter,not should it be viewed as establishing an attorney client relationship of any kind.

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4 lawyers agree

Posted

You are entitled to back pay. Talk with your employer about this, or have your attorney do so.

Mr. Shusterman's (former INS Trial Attorney, 1976-82) response to your question is general in nature, as not all the facts are known to him. You should retain an attorney experienced in immigration law to review all the facts in your case in order to receive advice specific to your case. Mr. Shusterman's statement above does not create an attorney/client relationship.

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17 lawyers agree

Posted

Definitely agree with my colleagues that you should speak with an immigration attorney about status and transfer issues. If you find a new potential H-1B employer, that company may make an attorney available to assist you. There are legal exceptions that can allow transfer (in discretion of USCIS) when an H-1B worker has been underpaid despite his efforts.

Regarding your contract, you should not assume the underpaid wages will invalidate the contract or your contractual obligations. If your contract has a monetary penalty (e.g. says you must pay $X if you resign earlier than a stated date), then you should consult with an employee rights attorney about any such risk factors with the contract, and a strategy to minimize contract-related risks. You can search for an employee rights attorney, by State, at this website: www.nela.org. The contract may specify a particular State's law applies to contract-related litigation, and you would want an attorney licensed in the appropriate State.

If you seek the unpaid wages, via asking the employer or via a legal claim, it presents some risk of retaliation. Per various laws, H-1B employers are not supposed to retaliate against workers pursuing unpaid wages, but some do anyway (e.g. via discharge, visa revocation and/or breach of contract lawsuit). It would be good to research Courts for your employer's litigation history to see if they have sued prior workers, and if so, how many and for what claims.

Long story short, I suggest you coordinate a strategy with an immigration attorney (who has reviewed your wage, status and transfer issues) and an employee rights attorney (who has reviewed your contract and employment circumstances). You should be able to work out a strategy that presents a good chance of a successful transfer without legal trouble.

Last, if the employer is large and has been systemically underpaying many workers (dozens or hundreds), there is potential for a class action claim. I have filed class action complaints for H-1B workers and could discuss that with you more if there are large- scale underpayments here. A potential class action claim, if viable, could provide significant leverage in resolving wage matters and other issues with the employer.

The answer above is not legal advice. For legal advice, you would need to consult directly with an attorney about the details of your situation. If you'd like, you can contact me directly at mbrown@dvglawpartner.com.

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