Written by attorney Michael F. Brown

Are You an Underpaid H-1B Worker Filing Your Own DOL Complaint? Consider These Factors

Many H-1B employees, without the assistance of attorneys, decide to file WH-4 complaints with the Department of Labor (DOL) to pursue their unpaid wages. Some workers have better results than others. Results often vary, based on a worker's level of preparation and understanding about the DOL complaint process and rights under the laws and regulations.

If you are considering filing your own DOL complaint, protect yourself and your rights by ensuring you are presenting your best case. This article is written by immigration attorney Vonda Vandaveer and myself, who co-author the blog Below, we discuss key areas for do-it-yourself WH-4 complaint filers, such as meeting filing deadlines, identifying all of the claims you may have, and putting together your best case.

Did you already miss the filing deadline?

DOL requires complaints be filed within one year of the occurrence of the employer's last H-1B regulation violation. This deadline is very strict. Even one day late is too late. This means if today is April 30, 2012, and you were last underpaid May 1, 2011, you can still file a DOL complaint, but if you were last underpaid April 29, 2011, it’s possibly too late and your DOL complaint may be rejected as untimely.

We say this example would “possibly" be too late because a closer look at the situation may reveal that violations have been continuing longer than the worker thought, enabling him or her to file a timely DOL complaint. For example, for an H-1B employer’s liability for your wages to end by a job termination, you must have been properly terminated. H-1B workers who have been on the bench with an H-1B employer may not be sure whether or when they were formally terminated from the job. Under the law, for an H-1B employer to properly terminate an H-1B employee and be relieved of wage liability, the H-1B employer must fulfill three key requirements, The H-1B employer must: 1) Notify the employee he is terminated; 2) Notify USCIS of the termination; and 3) Provide the employee with payment or means for return transport back home. If your employer claims it fired you but has not fulfilled all three conditions, you may not be terminated yet, and you may still be able to file a timely DOL complaint.

On the flip side, are you sure you started your H-1B employment and maintained an employee-employer relationship so that your employer is indeed liable for unpaid wages? An H-1B employer’s wage liability ends when the H-1B employee voluntarily leaves employment. If you were benched from the first day of your new job, and never maintained contact with your employer, you may be deemed to have voluntarily left your employment shortly after joining, so in that event your filing deadline may have since long passed.

As you can see, determining whether you are meeting DOL's filing deadline depends on the unique facts of your situation. So whether your initial assumption is that you do or don’t meet the deadline, you will want to thoroughly review the factors above, and check if your assumption is accurate.

Please note that even if you miss the DOL deadline, you may have other legal options for pursuing your money. For example, you may also have claims under state and federal laws, which often have longer filing deadlines than the 1-year DOL complaint deadline. Don’t give up hope if you missed the DOL deadline. If you want to see if you have other options, contact a competent attorney in this area of law to discuss your situation.

Did you claim all of your potential wages and other damages going back to day one?

Some H-1B workers who file DOL complaints confuse the DOL-filing deadline period with the period within which the worker can recoup unpaid wages. Your complaint must be filed with DOL within one year of the employer's last violation (e.g. filed within one year of the last date the employer underpaid wages). If the complaint is timely filed, however, then the period within which wages can be recovered is often longer than one year. In many cases, an H-1B worker can pursue unpaid wages dating back more than one year, sometimes stretching back 2-6 years or longer.

For example, say an H-1B worker's last date of underpaid wages (and last employer-violation) was May 1, 2011, and the worker filed a DOL complaint on April 30, 2012, so the complaint just met the 1-year filing deadline period. If DOL finds that the employer underpaid the worker on May 1, 2011, then DOL would likely investigate for potential wage violations before that date, possibly back to the first date of underpayment. Under applicable law, in this scenario DOL could find wage violations dating back to the first date of underpayment, and could award the H-1B worker wages for that entire time.

When completing a DOL complaint form, an H-1B worker should consider including a description of all unpaid wages and violations, no matter how far back those violations or unpaid wages may go. After DOL receives the complaint, DOL would then determine whether the complaint is timely, and how far back in time the employer's wage liability may extend.

Did you identify all of your claims?

The WH-4 Form has a checkbox list of potential claims. Did you check all that apply to your situation? Unpaid wages is a common box and claim to select, but workers may overlook other claims. Did your employer make you pay for H-1B fees? Or fail to offer you the same benefits as other employees? Or, make unlawful deductions from your wages? There are numerous violations your employer may have committed in addition to underpaying you. If you missed identifying any potential claims, you may be allowing the employer to keep money it wrongfully took. Be sure to fully review your situation and make sure you have identified all of your potential claims in your complaint.

Did you provide the best evidence?

The strongest complaints are the ones supported by evidence. A do-it-yourself filer may be inclined to write DOL a lengthy letter, detailing all the bad acts the employer did. However, some of the employer's actions (while bad) may not be a type of unlawful action that DOL can review or make a decision about, and DOL may consider such peripheral issues to be irrelevant or even harmful to your case.

For those wrongful acts that are important -- such as underpayments of wages, failures to reimburse visa fees or other lost money-- consider providing proof or evidence of those wrong acts (e.g. provide a copy of paystubs showing improperly low pay rate, or copy of check stub for unreimbursed visa fee you paid, etc.). Failing to provide evidence can make DOL's job more difficult and slow down your complaint processing, or worse, could even cause you to lose your case. Without evidence, DOL is compelled to contact you and the employer to request information, which will delay your case until (if and when) that information is received.

Protect your rights, and consider including evidence of each of your claims. For example, for unpaid or underpaid wages, key evidence would be a copy of your LCA and copies of your W-2 or pay checks to show the underpayment. In your claim letter to DOL, you could then explain what these documents show- that the LCA required your employer to pay a required wage, but your W-2 and/or pay stubs show you were paid less, in violation of the regulations.

Should you have an attorney review your complaint?

Preparing a DOL complaint requires intensive research, work and attention to detail. Failure to fully explore all of the issues and identify all of your potential claims may end up leaving you under-compensated for losses, or worse, with a rejected complaint. If you plan on filing your own complaint, consider having a competent attorney review your complaint documentation. An attorney review will help identify whether you are timely and eligible to file the complaint in the first place, and whether you identified all of your potential claims, calculated all of your compensable unpaid wages and other damages, and provided helpful evidence to support your claims.

Attorney reviews of complaints are less expensive (and some attorneys may offer a free review service) than full-service representation, enabling you to save on legal fees, but give you some peace of mind you are preparing the best case you can with the resources and options available to you.

The attorney-authors are willing, at no charge, to review your DOL complaint, whether in draft form or already submitted to DOL, and have a brief phone discussion about the complaint. ( Click here if you'd like more information about our free DOL complaint review process).

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