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Friday, August 5, 2011

H-1B Workers Have Rights Too


Over at Ask A Manager, Mike C. asked me this excellent question:

In my experience in the biotech industry, it always feels like the H1-B folks are indentured servants who are constantly afraid of being fired and deported. They’re generally expected to work for longer hours and seem to get less pay for their work.
What sorts of practices are legal/gray area/illegal regarding the treatment of H1-B visa holders? If I see illegal practices, who should they report complaints to?
Thanks for your consideration!

            Just because you’re here on a visa doesn’t mean you have no rights. The Immigration and Nationality Act gives workers who are here on work visas, and U.S. workers employed by an H-1B dependent employer, certain rights.
            H-1B workers have rights which include:
·         Copy of the Labor Condition Application: In this application, the employer must agree to pay the nonimmigrant workers at least the local prevailing wage or the employer's actual wage, whichever is higher; pay for non-productive time in certain circumstances; offer benefits on the same basis as for U.S. workers; provide working conditions for immigrant workers that will not adversely affect the working conditions of workers similarly employed; not employ an immigrant worker at a location where a strike or lockout in the occupational classification is occurring; notify the agency handling the visa applications of any future strike or lockout; and within 30 days before the date the application is filed, provide notice to the bargaining representative or employees of the employer's intent to hire H-1B, H-1B1, or E-3 workers.
·         Wages: The employer has to pay at least the same wage rate paid to similar US employees or the prevailing wage for the occupation, whichever is higher.
·         Non-productive time: If the employee can’t work due to the employer’s or worker’s lack of a license or permit, they still have to be paid for their time.
·         Fringe benefits: They must receive benefits on the same basis as other employees.
·         Penalties: There can be no penalty for leaving employment before an agreed date, but there can be “liquidated damages” under relevant state law for anticipated damages due to a breach of contract.
·         Rights as employees: Immigrant employees have the same federal, state and local rights as all employees under laws such as the Fair Labor Standards Act, Family and Medical Leave Act, Title VII (except they can’t bump an equally or better qualified U.S. worker from a job), COBRA, and other employment laws.
U.S. workers and applicants have rights if their employers also employ H-1B employees, which include:
·         Layoffs: They can’t be laid off within 90 days before or after the employer files a petition to employ an H-1B worker in an equivalent job.
·         Hiring priority: The employer must offer the job to any U.S. worker who applies and is equally or better qualified than the immigrant worker.
·         Wages: They must be paid wages at least equal to any H-1B worker in the same or equivalent position with similar experience.
            Both U.S. and immigrant workers have these rights:
·         Retaliation: Employers cannot intimidate, threaten, blacklist, discharge, or in any other manner discriminate against any employee, former employee, or job applicant for disclosing violations of H-1B, H-1B1, or E-3 provisions or for cooperating in an official investigation of the employer's compliance.
·         Examine records: All employees have the right to examine the employer’s records that they are require to maintain regarding their compliance with the law.
            The Department of Labor has a detailed fact sheet about employer responsibilities, employee rights and penalties here. The Department of Justice enforces violations, and penalties can be severe.

3 comments:

  1. First of all, thanks so much for answering my question! This clears up a great deal.

    One question regarding the issue of hiring priority - can an employer purposefully advertise the job in a way that would ensure few if any domestic workers find out about it? Say placing ads in foreign language newspapers or by word of mouth? That way they can claim, "oh, no domestic workers even applied, I guess we need another visa".

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  2. donna would like to reach you regarding hirecentrix.com.. can you please contact me at karenm@hirecentrix..

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  3. Hi Mike. I would think that would be a violation. You might try reporting them to the Department of Justice to see what happens.

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