What are the H-1B Specialty Occupation Worker's Rights?
February 10, 2010
It is generally understood that the H-1B visa allows foreign workers to come to the United States to engage in a “specialty occupation.” It is an advantageous visa because it allows foreign workers to pursue their green card while working as a “temporary” worker in a technical job. However, many employees working in the H-1B classification may be surprised to learn that they have many rights which may not be known to them.
The H-1B worker’s employer must give them a copy of the Labor Conditions Application (“LCA”). The LCA serves an important purpose in immigration law. It ensures that wages are not depressed for qualified U.S. workers and it keeps foreign workers from being exploited. This is accomplished by the employer making employment attestations including that it will pay the worker sufficient wages. The H-1B worker is given a copy of the LCA and a notice is placed in a conspicuous location notifying other workers that an LCA was filed.
Further, U.S. employers cannot discriminate against H-1B employees with regards to their pay. The employer must pay the H-1B worker at least the prevailing wage in the locality for the proffered job or the rate paid to other similar employees, whichever is higher. This again ensures that the worker will not be adversely affected by harsh employment practices concerning foreign labor. If the employer causes the H-1B employee to be placed on non-productive time, it must pay for that time. It also must pay for non-productive time due to the worker’s lack of license or permit. The employer is also required to offer the H-1B worker the same fringe benefits as its other employees. These safeguards serve the purpose of fairness and equity and create a level playing field for foreign specialty occupation workers.
An H-1B worker may choose to leave the employer prior to any agreed upon date due to various factors including finding a more suitable job in America. The employer may not require the H-1B worker to pay a penalty for leaving, but may write a “liquidated damages” clause into the employment contract which is valid under state law. If the worker believes that the liquidated damages clause is unreasonable, the worker should consult an attorney to analyze the contract as such clauses are not always enforceable.
Finally, if an H-1B worker believes that the employer is violating the H-1B regulations, that worker may disclose such violations. The employer may not intimidate, threaten, blacklist, discharge, or in any other manner discriminate against the worker for disclosing such violations. This is another safeguard put in place by the immigration regulations to maintain the rights the H-1B worker.
The H-1B specialty occupation visa is one of the most sought after employment-based visas. Employer compliance with the H-1B requirements is extremely important for the integrity of the visa. The employer is required to keep public disclosure documents regarding the employer’s compliance with the attestation requirements and all H-1B employees may examine them.
If you think you are eligible for a H-1B visa, contact the Law Firm of Shihab & Associates, Co., LPA. We are attorneys versed with the current issues affecting your H-1B visa. Our slogan is “Innovative Representation….Proven Results.” We fight for our clients. Call us today at 614-255-4USA (4872).