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rsa.esq
rsa.esq, Lawyer
Category: Employment Law
Satisfied Customers: 73
Experience:  Sworn to the California Bar in 2011. Former staff editor at The New York Times Co. and seasoned news professional of 20 years experience in the U.S. and abroad.
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My friend came on H1B visa to USA ( McLean, VA) on December

Customer Question

My friend came on H1B visa to USA ( McLean, VA) on December 20th , 2015. His employer ( who sells the Information Technology expertise to other companies) is not willing to pay the wages listed in the contract. In stead, employer said that he would pay salary and other benefits ( such as health insurance) only when he finds the work for him. My friend has made himself available immediately but employer is not willing to pay any salary and benefits ( such situation is known as Bench). Whether the employer who sponsored H1B visa , can choose not to pay any salary to their employee whenever they want to ? Although the employee is at no fault , yet no salary and benefits are being paid. Is it normal ? Additionally, employer is not willing pay the prevailing wage /salary . It is like regular annual salary would be $120,000 from the local labor market, however employer wants to pay ONLY $55,000 annually ? Whether H1B employer is allowed to abuse the salary of H1B employee like this ? And, finally, if employee wants to complaint where they should complaint ? Unfortunate part is that as soon as this H1B employee ( who just came from some foreign country) files a complaint , the next thing they find is retaliation from the employer, and in retaliation or revenge against the H1B employee , employer tries to cancel his H1B and wanted to make sure that he leaves the country (USA) before even employee's plea is heard by appropriate department. How to fight against such retaliation ?
Submitted: 10 months ago.
Category: Employment Law
Expert:  rsa.esq replied 10 months ago.

Hi, my name is ***** ***** I hope to provide some helpful perspective.

Be aware that I am licensed in California; we cannot provide specific legal advice in this forum; and no lawyer-client relation exists.

That said: This appears to be a labor contract issue, not an immigration issue.

So the issue is whether the friend has a valid contract with the employer. and that will depend on many factors:

-- is there a written agreement?

-- are there oral agreements?

-- do any if these agreements form a contract?

-- if there is a contract, what are the exact terms?

-- has either side failed to perform their obligation (if a contract exists), without legal excuse?

-- was the failure material or minor?

I hope you can see there are a lot of details that need to be conveyed to determine the employee'-employer relationship and how best to proceed.

Depending on the size of the employer, it may well be governed by many federal laws, including discrimination, ERISA and others; any complaint by the employee of ill-treatment that triggers retaliation from the employer potentially make the employer liable for that as well.

Please consider the value in paying for a full consultation with a labor contract lawyer, not only wit respect to the income, but the need for future sponsorship od the friends wished to continueworking in the U.S.

I know it is not a quick/simple answer. Unfortunately in lw there rarely is a quick & easy answer. But I hope this provides some perspective, and if so, pI would appreciate a positive rating!

Thanks & Best!

Scott