(This article is co-authored by H-1B-employee rights attorney Michael Brown and immigration Attorney Vonda Vandaveer, authors of the blog www.h1blegalrights.com)
We hear from many H-1B holders who have been benched or underpaid, but who think it’s best if they first find a new job, return to school, or obtain some other status to enable them to stay in the United States before they complain about their H-1B employer who underpaid them or violated the law.
The reality is, unless you have valid pay stubs to prove you have been maintaining your H-1B status, it can be very difficult to move to a new H-1B job, to get a student visa, or to otherwise change or extend status. Indeed, unless an H-1B worker has proof that he or she has been maintaining H-1B status, the worker cannot lawfully stay in the United States and change or extend status. Instead, the H-1B worker must leave the United States, await a new approval, and then apply to re-enter.
So, what can you do if you are an H-1B worker who wants to remain in the United States but leave the H-1B employer who violated the law?
One options is registering a complaint. Complaining about an employer’s unlawful activity in a legally proper way may give you the very tool you need to try to salvage your life in the United States without leaving.
Rules of Changing or Extending Status
As H-1B holders know, they are typically required to submit pay stubs as evidence to show they have been working and thus maintaining their status. Benched employees without pay stubs cannot show they have been maintaining their status, which usually means they cannot legally change or extend their status while staying in the United States. Instead, if such benched workers want to work for another H-1B employer, for example, then they normally must leave the United States and await the approval of a new H-1B petition before returning and working.
How Complaining About Your Employer’s Unlawful Activity Can Help Salvage your Status
If you complain about your H-1B employer’s unlawful conduct (via a proper complaint to the employer or a legal complaint), however, you may be able to take advantage of a special regulation that permits a change or extension of status despite a failure to maintain status if that failure was not the H-1B employee’s fault.
This regulation, referred to here as the “extraordinary circumstances" regulation, gives USCIS the discretion to approve extensions [8 CFR 214.1(c)(4)] and changes of status [8 CFR 248.1(b)] without requiring the employee to leave the United States, if the H-1B worker can prove he has not been maintaining his status due to “extraordinary circumstances beyond the control of the [worker]."
What constitutes an “extraordinary circumstance" is not defined by the laws above. It is intentionally left open-ended to take into account the numerous scenarios that could prevent someone from maintaining their status. A serious illness that would prevent an H-1B employee from showing up to work, for example, is one type of circumstance contemplated by the regulation.
When USCIS reviews requests for forgiveness due to “extraordinary circumstances," some of the factors USCIS will consider include (1) the reason the H-1B employee did not maintain status, (2) for how long the employee was not maintaining status, and (3) what the employee did about it (e.g. for a benched employee, did you email your employer in a professional manner to object that you were not being paid, or did you say nothing?).
For benched H-1B workers, this regulation has been successfully used by those who could establish their employers failed to pay them legally-required wages, and the worker complained about it. (Please note that the type and content of a complaint you make is important, and it can be of great help to have an attorney review a draft email complaining to the employer, or a draft Department of Labor complaint, before you submit the complaint).
If you were benched without pay and made a proper complaint about it, USCIS may find that situation to qualify as an “extraordinary circumstance" and find you are permitted to maintain status and lawfully move on to a new employer or situation.
The attorney-authors’ clients who were benched and who had properly complained about it have successfully obtained a change or extension of satus per the extraordinary circumstances regulation. We must note, however, there is no guarantee USCIS will apply this regulation to your case. The “extraordinary circumstance" regulation gives USCIS the option, but not a required mandate, to extend or change status based on your H-1B employer’s legal violations and your complaint.
If you don’t have this argument in your toolbox, however, changing or extending your status without pay stubs as proof you were maintaining your status will be even more difficult.
Whether you are a good candidate for seeking relief under this regulation for unpaid wages depends on the circumstances of your case. Because every person’s situation is unique, if you have not maintained status, even if you believe it was not your fault, you should promptly seek competent legal advice before taking any action to determine all the legal options, and the best strategy, for your particular situation.
For more information on changing or extending your status, please see our articles FAQ: I’ve Been Benched and Have No Pay Stubs. Can I Change My H-1B Visa? and Is Your Employer Benching You and Offering Fake Paystubs? Don’t Take Them! There Are Other (Lawful) Options.