I've Been Benched or Fired and Have No Pay Stubs. Can I Change My H-1B Visa?
In our representation of H-1B workers, we frequently receive the following questions:
Question 1: I'm an H-1B employee and I have benched without pay, but I have found a new employer. I have no pay stubs. Can I "transfer" without leaving the U.S.?
Question 2: I'm an H-1B employee and I was benched without pay, but when I complained, my employer fired me. I have found a new employer, but have no pay stubs. Can I "transfer" without leaving the U.S.?
Answer: The answer to both questions is maybe.
In this article, we (the co-authors of the attorneys' blog www.h1blegalrights.com) explain a regulation that may enable you to change or extend your visa without leaving the United States, when the employer's failure to pay you caused you to have not maintained your status.
H-1B "Transfers" and Maintenance of Status
For an H-1B worker to change H-1B employers or extend status (a.k.a. "transfer" as it is sometimes misnamed), the H-1B worker must have maintained status. In the context of an H-1B visa, maintaining status includes maintaining the employer-employee relationship with the H-1B employer sponsor.
If the H-1B employee has not maintained status, he cannot seek the extension of stay (e.g. change to another H-1B employer) or change of status (e.g. change from H-1B to F-1) from within the U.S. Rather, the worker would have to leave the U.S. and if the application is approved, then re-enter on a valid visa. (Whether a new visa needs to be obtained depends on the circumstances).
This requirement to maintain status is what underlies the USCIS requirement for pay stubs and other financial proof of having been paid. Those who have been benched or fired don't have the required pay stubs.
There is a useful regulation, however, that may help benched or fired H-1B employees change their employers or change their status without leaving the United States.
"Extraordinary Circumstances" Regulation
Regulations give 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, assuming the H-1B worker can prove he has been out of status due to "extraordinary circumstances beyond the control of the [worker]."
What constitutes an "extraordinary circumstance" is not defined by the laws above. An example that comes to mind, though, is a serious illness that keeps an H-1B worker bed-ridden for a long period of time and, through no fault of the worker's own, physically makes the worker unable to work (and receive paychecks). This is obviously an example of a illness-driven situation that causes an H-1B worker not to work. But what about when an employer's action is the cause?
If an H-1B employer benches an H-1B worker without pay or is terminated in retaliation for complaining about unpaid wages, USCIS may deem such situations to qualify as an "extraordinary circumstance," but whether USCIS decides to do this depends on the circumstances.
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?).
If you were benched without pay and paystubs or experienced a retaliatory termination, USCIS may find that situation to qualify as an "extraordinary circumstance," but we must emphasize that 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 forgive status problems. USCIS can decide your situation does not qualify and can deny the extension or change of status.
Department of Labor regulations at 20 CFR 655.801 and a USCIS policy memo support arguments that termination in retaliation for complaining about Labor Condition Application (LCA) violations, such as unpaid wages, may be deemed an extraordinary circumstance enabling a change or extension of status.
Whether you are a good candidate for seeking relief under this regulation for unpaid wages or retaliatory termination 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 immediately seek competent legal advice before taking any action to determine all the legal options, and the best strategy, for your particular situation.
H-1B workers who do not seek legal advice often make mistakes, based on the (understandable) fact the worker is not aware of the legal standards at issue, and is more focused on the frustration and desperation of not being paid and trying to deal with an employer who is not following the rules. However, an H-1B worker who acts out of frustration or desperation -- for example, a worker who makes angry outbursts to the employer, or who accepts an employer's illegal offer to create phony paystubs-- is greatly increasing the risk of problems.
In our practice as attorneys, we have been able to help many benched H-1B workers receive pay from their employers, and also to lawfully move on to a new H-1B employer through the "extraordinary circumstances" law. But the workers we can help are those who want help to comply with the law. Those who try a do-it-yourself fix, or try to enlist the help of the employer (the same employer who caused the problems in the first place), often wind up with the same results (no pay, no ability to move to a new job), or worse.
DISCLAIMER: The information in this article is NOT legal advice, nor does it establish an attorney-client relationship between you and the attorneys or law firms above. Legal advice often varies among situations. If you want legal advice for your specific circumstances, you must consult with an attorney.