The H-1B Visa Program & "Benching" Violations
While H-1B visas offer a great opportunity for both foreign nationals and American companies, unscrupulous employers can potentially take advantage of people’s desire to work in the United States. Abuses include failing to pay H-1B workers at the required wage and failing to pay them when work is unavailable.
Under the Immigration and Nationality Act (“INA"), an employer in the United States can petition the federal government to allow a foreign national to work here as an H-1B nonimmigrant worker. In order to receive an H-1B nonimmigrant classification from the federal government and employ H-1B workers, employers must complete a Labor Condition Application (“LCA"), specifying the employee’s job, location, and wage. In the LCA, the sponsor employer certifies its compliance with wage requirements. These requirements are in place to prevent an influx of cheap foreign labor for professional services and to prevent schemes where by employers lure foreigners to the United States when no work is available for them.
Pursuant to the INA, certification imposes two main wage requirements on H-1B sponsor employers. First, sponsor employers are required to pay H-1B employees the higher of (a) actual wages the employer pays coworkers in related positions or (b) a “prevailing wage" for the specialty. Second, sponsor employers must pay H-1B employees during the periods in which they are nonproductive, or “benched." Benching occurs when an employer temporarily decides to place an H-1B in nonproductive status because of lack of assigned work or lack of a permit or license.
Unfortunately, certification through LCA’s has not prevented abuses of the H-1B program. The Department of Homeland Security conducted a study of this program and found that many employers fail to comply with INA requirements by either paying employees below the prevailing wage or not paying for bench time. (http://www.laborimmigration.com/wp-content/uploads/2008/10/uscis-h1b-audit-report.pdf.) Some employers will require H-1B employees to find their own work through other third parties when there is no work available through the sponsor employer. In addition, employers have even demanded that H-1B employees submit false requests to take voluntary, unpaid leaves so that a failure to pay the proper wages will not look suspicious to the government. Many employees comply with such demands under the employer’s threat of visa cancellation.