In which situations are employers required to pay wages to H-1B employees for their nonproductive time, and in which situations are they not? According to federal immigration law, employers are required to continue to pay wages to their H-1B employees even when they are not working, provided certain circumstances exist. If you have questions about the H-1B process and would like to consult with an attorney, contact The Law Firm of Shihab & Associates. We have over 50 years of combined legal experience in a wide variety of complex and immigration law matters.
When are employers required to pay wages for nonproductive time?Under certain circumstances, immigration law requires an employer to pay full wages to an H-1B worker during nonproductive time in which that employee did not work. These wages must be paid when the worker is “ready, willing, and able to work,” and the nonproductive status of the worker is a result of the employer’s decision or action. In this case, the worker must receive wages equal to at least the number of hours listed on the Form I-129 petition and on the Labor Condition Attestation (LCA) form.
Workers are entitled to wages when the nonproductive time is caused by conditions related to employment, such as lack of assigned work, lack of a permit, or studying for a licensing exam. The H-1B worker must be paid if the worker's nonproductive status is due to a lack of available work. This means that an employer cannot “bench” a worker because there is no work for that worker to do. It is the employer's responsibility to provide work. If the job requires the worker to possess a required permit or to pass a required exam, it is the employer's responsibility to see to it that the worker has such permit or has passed such exam. Employers found in violation of this rule may be required to repay the funds to the employee as back wages and may be subject to civil penalties.
When is the employer not required to pay wages for nonproductive time?Immigration law does not require an employer to pay an H-1B worker for nonproductive time when that status as a result of conditions not related to the employer, but as a result of the worker’s “voluntary request and convenience.” The H-1B worker is not entitled to wages when the worker is not ready, not willing, or not able to work through no fault of the employer. This includes voluntary absence from work for non-work related reasons such as illness and so on. This also includes when the worker is present at work but voluntarily chooses to engage in activity that is not part of his or her duties under the job description.
If you would like further information about the H-1B process or any other immigration matter, please contact our immigration attorneys at The Law Firm of Shihab & Associates, Co., LPA to schedule a consultation with an attorney at an office near you.