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If you’re a worker who believes you’re owed unpaid wages, there are a few pressing things to consider upfront, such as: (1) learning legal deadlines that may apply; and (2) promptly organizing information and documents that describe the unpaid wage issues, i.e. getting your ducks in a row.

When a worker with unpaid wages contacts me about potentially representing him or her– and when that worker has already prepared and organized documentation, such as spreadsheet summaries of estimated hours and wages, pay stubs in chronological order, policies applying to hours and wages, etc.– this makes everything more efficient.

I can more efficiently evaluate potential claims and options, and if legal action is pursued, that can usually occur more promptly, efficiently and effectively as well.

If your ducks are in a row, you’re more likely to hit the ground running. Okay, I’ll stop with the cliches.

If you are a worker paid a salary, then you may be ineligible for overtime pay, assuming other circumstances exist as well. (Being paid a salary is one of multiple criteria that must be met before an employer can consider you overtime-exempt).

However, some workers who are called “salaried” workers by their employers are not paid on a “salaried basis” as defined by overtime law, and are in fact eligible for overtime because of their non-salaried status under the law.

If an employer docks wages from a “salaried worker,” this can be a major no-no that can change the worker from “salaried” to hourly (overtime-eligible) status under the law.

For example, if on a given day a salaried worker leaves work four (4) hours early for personal reasons, an employer cannot dock the worker 4 hours wages for the missing work time.  As another example, an employer cannot dock a salaried worker an 8 hour day if the employer did not have work available, but the worker was able and willing to work the 8 hour day.

There are some exceptions, and circumstances where an employer can dock pay without affecting a worker’s salaried basis status.

The U.S. Department of Labor (DOL) has a Fact Sheet describing the salaried basis test, and how an employer’s docking of a worker’s wages can mean a worker– despite being called “salaried”– is not salaried for overtime law purposes.

If you have been docked hours and wages, despite being told you are paid by salary, you may want to review DOL’s Fact Sheet above in detail, and other information about salaried basis pay and overtime laws, to clarify whether the employer should be paying you overtime wages.

This post continues my series of tips, or things to consider, for workers with unpaid wages.

Tip #10 is this: Don’t Sign Documents the Employer Presents That You Disagree With, or Believe to Be False.

If you have unpaid wages, and an employer approaches you with a document to sign relating to the unpaid wages, chances are that document benefits the employer.

I am aware of employers who asked workers to sign off on:

• Timecards or payroll documents with underreported wages. For example, some employers make automatic1/2-hour pay deductions for a lunch period everyday, despite the worker having to work through the lunch period many days. Such documentation should reflect your actual hours and pay before you should be made to sign off on it.

• Settlement agreements that pay significantly less wages than the law requires.  Some employers, to their credit, self-identify wage underpayments and approach workers with settlement agreements in which the employers agree to pay the workers if the workers agree to waive potential legal claims. However, employers’ initial settlement offers (especially if the employees do not have attorneys) usually offer significantly less than the legally-required wages and/or damages. If it’s possible to have an attorney review and advise about a proposed settlement before applicable deadlines, this can be of assistance in potentially negotiating or winning a larger payment and avoiding potential pitfalls.

• An arbitration agreement.  These agreements (if signed by the employee) take away the employee’s right to go to court for an employment dispute, and in some instances take away the right to participate in a class action lawsuit. The employee must participate in arbitration, a process which lacks the full rights available in court, and often involves an arbitrator hand-selected by the employer, who has routinely dealt with the employer’s matters. Employers’ ability to impose one-sided arbitration agreements became even more severe due to the Supreme Court’s AT&T Mobility v. Concepcion decision, which allows arbitration agreements to (1) limit employment disputes to an arbitration forum (and prohibit court as a forum); AND (2) take away an employee’s right to participate in a class action, whether in court or in arbitration.

• False documentation, such as false work-leave forms, that serve the employer’s benefit.  This type of issue is common with H-1B workers, where some H-1B employers will try to get H-1B workers to sign forms indicating the workers took leaves of absence they did not in fact take. The H-1B employers who do this are often trying to cover up their “benching” of the workers and failure to pay the required wage.  If you are an H-1B worker (or employee of any kind) whose employer is confronting you with a false form, you should not sign the form and seek legal counsel before considering signature of something you know to be false and against your interests.

Please give careful time and thought to such documents before you sign them. If an employer is rushing or pressuring you to sign such documents, that is an even worse sign that the employer wants to act against your interests and not allow you a fair opportunity.

This post continues my series of tips, or things to consider, for workers with unpaid wages.

Tip #7 is this: use a date calculator to help with calculations of deadlines and/or unpaid wages.

For years, I have used a website date calculator, like this one, to help me calculate legal deadlines (statutes of limitations) and/or unpaid wages.

A date calculator website lets you (1) enter a start date (e.g. “5/1/2011″) and (2) enter a number of days (e.g. “300 days”), and then the website calculates the end date following that number of days (e.g. “2/15/12″ is the date 300 days after 5/1/2011).

This function can be a handy tool when calculating the deadline for a legal claim. For example, certain discrimination- and retaliation- based legal claims relating to unpaid wages have a 300-day deadline. (Please note that deadlines vary for different situations, and an attorney could evaluate applicable deadlines for the particular legal claims that may apply to a given situation).

If an attorney advised a 300-day legal deadline applied to a particular legal claim, a worker could use the wage-calculation function above to enter the date of the event at issue– e.g. a 5/1/2011 retaliatory job-termination of a worker fired for complaining about unequal pay based on gender– and the date calculator website will figure out the legal deadline date occurring 300 days after that initial event date.

Another helpful function of a date calculator website is to let you enter (1) a start date and (2) an end date, and then the website calculates the number of days between the dates.

This function can be helpful in figuring out how many weeks a worker was underpaid wages, and estimating the total unpaid wages over that time.

For example, if a worker estimates he was underpaid about $200/week between 4/12/2010 and 2/10/2011, he can use the website to calculate the total number of underpaid weeks and estimated unpaid wages at issue.

The worker can use a regular calculator to divide the 304 days by 7 days, which results in approximately 43 weeks. The 43 weeks can then be multiplied by $200/week (the estimate weekly unpaid wages above), and the total unpaid wage estimate in this example would be $200/wk x 43 wks = $8,600.

In sum, a date calculator can avoid the human time, risk and error that can be involved in counting a large number of calendar days, and can be a useful tool (along with a regular calculator, and legal advice about applicable deadlines) in calculating legal deadlines and/or estimated unpaid wages.

This post continues my series of tips, or things to consider, for workers with unpaid wages.

Tip #6 is this: When Finding a Wage Attorney, Think National, Ask the Important Questions Upfront, and Other Things to Consider.

Here’s an (obvious) disclosure upfront: I am a wage attorney, so it benefits me to talk to workers about the best ways to find a wage attorney.

So, while you should consider the source, so to speak, you should also consider the logic of what I’m about to say, to see if it makes sense and is worth taking into consideration.

The Search for a Wage Attorney: Think National

First, when you search for an attorney to assist with unpaid wage issues, think national. Don’t box yourself in by sticking to attorneys who are literally in your neighborhood, or who are referred to you via a limited method (e.g. on a list of pre-paid service attorneys).

The most important issue in your search for an attorney– regardless whether the attorney is local, in your State, or outside your State– is that the attorney has experience and achieves good results in the exact type of matter you are dealing with.

For example, there are several wage issues that I deal with routinely, and that I represent persons across the US for those claims.  There are other occasions where I partner with other law firms– often, law firms in different States– so their areas of work and expertise can join and complement mine to provide full representation.  And on other occasions, a worker will call me, I’ll hear what is going on, and I will find the particular issues can only be handled by other attorneys with practice expertise I do not have. In those instances, I give the worker recommendations as to where to find the best attorney.

The key is that you start with an attorney who you regard as knowledgeable with the wage issues you’re encountering, and who you trust.  If that attorney values solving your problem over all else– then the attorney will guide you to the right hands, whether it’s the attorney’s own hands and/or the hands of other attorneys who are experienced in the matters at issue.

When it comes to wage issues, it is often the case that the attorney down the block is willing to take your wage case, but is not experienced with your type of case.  A general-practice attorney– especially one who practices multiple areas outside of employment law, and who does not focus practice on individual- or plaintiff- side matters– will not have (and logistically could never have) specialized experience in employee-side wage issues.

In sum, when you look for a wage attorney, do not start with the issue of location.  Start with the issues of competency and trust. If you find a wage attorney who knows what she is talking about, and who you trust, you can ask that person whether she knows of an attorney who is local, if location is a more important consideration.  Chances are that that attorney can much better guide you into the best hands than could the Yellow Pages for instance.

There are certain types of wage claims where I tell a worker that they can only use an attorney licensed in that worker’s State, given the particular issue. So location can be a very important factor. However, it is not the first factor to consider.  Again, start with the issues of competency and trust.

When You Initially Talk to a Wage Attorney, Ask the Important (and Tough) Questions Upfront

If you are talking to an attorney for the first time about your unpaid wages, chances are, you are very interested in knowing things like this: (1) will you work on contingency, and how much in fees can I expect to pay? (2) do you have experience with my type of matter? (3) what type of results do your wage clients usually get?

I am surprised with how few workers ask me these questions upfront. I suspect because they are tough to ask.  Maybe you feel self-conscious to ask an attorney because you’re thinking of concerns like this– “Will this attorney feel like I’m questioning his honesty and competency?”

Ask anyway.

If you ask these questions (and other pointed questions on issues that are most important to you), you will get important information that you’ll need in order to feel comfortable and confident in the attorney.

If the attorney does not answer the questions squarely, and in a way you find satisfactory, then move on to an attorney who can.

Mistakes that Can Result from Failure to Find a Competent Wage Attorney

I run into many workers who contact me after something bad happened, and that wouldn’t have happened, had that person spoken to a competent wage attorney beforehand.  Here are common mistakes I see when a worker does not promptly speak to a competent attorney about underpaid wage issues:

• Problems of Misevaluation/Oversight: The worker (and/or an attorney he used that was inexperienced in wage matters) overlooked legal claims that could have benefited the worker, and focused on narrow or worse legal claims, or missed all legal claims altogether.

• Missed Deadlines: All too often, a worker contacts me after the deadline(s) (statutes of limitations) for her best legal claims have passed.

• Mistake in Strategy: Sometimes, workers will come to me after they or their attorney has undertaken a strategy– e.g. contacted an employer in a different manner or made a type of complaint that a competent wage attorney would not have recommended– and they are in a worse position for having taken those strategic actions.

• Overcharged Fees: Sometimes, workers pay thousands of dollars in out-of-pocket legal fees and/or costs before they realize they are not getting results in trying to get unpaid wages.  Most of my own wage cases involve contingency (pay-only-if-you-win or settle) representation.  If an attorney charges out of pocket legal fees, that is perfectly permissible.  But the attorney should be clear about what you can expect to pay, and what type of result is likely in return for that payment.

Problems like this can be avoided if you consider the tips and information above in your search for a wage attorney.

Conclusion

I hope this information is helpful if you are looking for an unpaid wage attorney.

Of the 11 people arrested last week, eight were employees. The employees were indicted as co-conspirators based on their alleged role in obtaining H-1B visas and seeking permanent residency by fraud, according to redacted indictments filed in U.S. District Court of the Southern District of Iowa.

Read more at the blog h1blegalrights.com.

So why do H-1B employees put up with this situation?

One of the main reasons an H-1B employee tolerates exploitation rather than filing a complaint against the employer is fear of being deported.

This fear is understandable, but protections do exist. Specifically, regulations prohibit the employer from threatening you and retaliating against you if you complain about his violations of the law. 20 CFR 655.801.

Read the full article on the blog H1BLegalRights.com.

If your H-1B employer (or former H-1B employer) underpaid your wages, you may be interested in complaining to the employer or pursuing legal action, but worried about what may happen to you. You may be worried that, if you complain about unpaid wages, you may lose your H-1B status, and be subject to deportation.

These are realistic concerns. Pursuing your legal rights indeed is a serious and delicate matter. You should thoroughly educate yourself on your legal rights and options before you take action or assume risks.

However, you should know that an underpaying H-1B employer has its own risks to worry about. The legal and financial consequences that an employer faces if found to have underpaid an H-1B employee’s wages could drive the employer out of business.

Rather than face the risks that result from a worker filing a legal complaint, fraudulent H-1B employers will often prefer to reach a settlement with an underpaid H-1B worker.

Fraudulent H-1B employers may well agree to a settlement that: (a) pays you your unpaid wages (and possibly more, given the possibility of legal penalty monies in addition to wages); (b) fixes any immigration-status problems (e.g. makes sure you receive valid payments and paystubs needed for H-1B transfer); and (c) agrees not to retaliate against you.

Below are 5 reasons why an underpaying H-1B employer should agree to such a settlement.

(Please note: This article is NOT advising you to demand settlement from your employer, to threaten your employer with legal action, or to take legal action. Before trying to negotiate a settlement or filing a legal complaint on your own, it is strongly advised that you talk to an attorney, such as an H-1B rights attorney and immigration attorney, about your own specific circumstances and legal options).

If the H-1B employer does not settle with you, you could go on to file legal complaints that could present serious problems for the employer. (Please note: you could pursue these legal complaints even if you were deported and outside the U.S.-so, the employer could not “fix” its potential problems by trying to get you deported).

There are two types of legal complaints that could be filed against the employer: (a) a Department of Labor (DOL) complaint, which relates to failure to pay the prevailing wage and other immigration law violations; and (b) a federal court complaint, which relates to unpaid wages and various fraud laws.

Here are 5 reasons why an employer would want to avoid these legal complaints and settle with you instead.

#1 If the employer refused to settle with you, and you went on to file one of these legal complaints, the employer would likely have to pay your unpaid prevailing wages.

If an underpaid H-1B worker filed a legal complaint, the chances are the employer would be found in violation of the laws and have to pay the worker the unpaid prevailing wages.

In addition, the employer would have to reimburse the employee for any prohibited payments or wage deductions demanded of the employee such as the petition filing fee or an early termination penalty.

Violations are often clear-cut. In many cases, a legal decision-maker can compare documentation, readily determine a worker has been underpaid, and/or the employer has made unauthorized deductions, and require payment from the employer.

#2 The employer may have to pay back the unpaid wages of other H-1B employees as well.

If a DOL complaint were filed, it is likely that DOL would investigate not only the employer’s underpayment of your wages, but also the wages of other employees, to see if they were underpaid as well.

Say, for example, the employer underpaid you personally by $25,000, and underpaid nine (9) other workers in the same manner.

If the employer refused to reach settlement with you (say, a settlement which paid you the $25,000 you were underpaid), and you go on to file a DOL complaint, the employer could risk the DOL making the employer pay out $250,000 to ten workers.

You may not know exactly how many workers the employer has underpaid, and how much the employer has underpaid them. However, when an H-1B employer has underpaid you and treated you fraudulently, the odds are high that the employer has done the same thing to several other H-1B workers. A fraudulent employer has to worry about all its underpaid workers, not just you, if the employer understands you and your attorneys may file a DOL complaint.

Faced with the prospect of having to pay all of its underpaid H-1B employees, an employer should be more inclined to settle with you to avoid a DOL investigation and being found in violation of the regulations.

#3 The employer could have to pay triple your wages, and additional monies, if the employer lost a fraud claim in federal court.

In addition to a DOL complaint, an underpaid H-1B worker may be able to file a complaint in federal court under various fraud laws.

A federal complaint can also be filed by a worker who has been deported and is no longer in the U.S.

If you win a claim under one of these federal laws, the law requires that the fraudulent H-1B employer pay you triple the amount of your lost wages as well as additional monies.

Further, the employer and its representatives would have to defend the complaint and would probably have to retain an attorney and pay thousands of dollars in legal expenses. (Most employers’ attorneys charge out-of-pocket fees on an hourly basis, as opposed to a contingency, pay-only-if-you-win basis that workers’ attorneys often have).

If you and your attorneys can get the employer to understand these financial risks of a federal complaint, it is all the more likely the employer will want to reach settlement with you rather than face the possible consequences of federal litigation.

#4 The employer, if found in violation of DOL regulations, could be subject to heavy fines.

In addition to requiring payment of back-wages, depending on the nature of the violation, the DOL can impose fines ranging from a maximum of $1,000 to $35,000 per violation committed by an employer. These fines can add up quickly, especially if there are multiple violations pertaining to more than one H-1B worker.

Faced with the prospect of paying both back-wages and fines should serve as a further incentive for an employer to reach settlement rather than risk going to court and losing.

#5 The employer, if found in violation of DOL regulations, could lose its right to employ H-1B or other foreign workers.

Financial liabilities are not the only sanction an employer faces if found in violation of DOL regulations. The employer may also lose its right to petition approval for immigrant and non-immigrant workers for up to three years. For an employer who relies on foreign workers to keep its business running, such a restriction could be devastating. As such, the potential imposition of this sanction should be a factor in an employer’s decision as to whether to settle with you or fight your claim.

Conclusion

Given all these risks that a fraudulent H-1B employer faces, it would likely be a far better decision for the employer to reach a reasonable settlement with an underpaid H-1B worker as opposed to facing the possible severe consequences of legal actions.

Again, it bears mention this article is not advising you to rush to threaten an underpaying H-1B employer with legal action, demand settlement, etc.

How you take action is a delicate matter. You should strongly consider speaking with an H-1B rights attorney and immigration attorney before you take action.

The information above is intended to educate you on the risks the employer faces and the reasons that employers may be inclined to reach settlement if you and your attorneys do decide it is appropriate to communicate with the employer about your right to be paid the prevailing wage.

Additional Information

For more H-1B employee rights information, please visit the blog www.h1blegalrights.com.

To learn more about H-1B rights and options, please see these posts:

• “Employee Tip: If You’re an H-1B Worker Being Underpaid Wages, Consider These Things”
• “5 Reasons Why an H-1B Employer Would Want to Reach Settlement With An Underpaid Employee”
• “H-1B Workers’ Fears vs. Fighting for Your Rights”
• “FAQS- If You Were Underpaid as an H-1B Worker and Are No Longer in the U.S.”

For information about H-1B Rights & Immigration Rights Attorneys Michael F. Brown and Vonda K. Vandaveer, please visit here.

This post was jointly authored by Employee Rights Attorney Michael Brown of the law firm of Peterson, Berk & Cross, and Immigration Attorney Vonda K. Vandaveer of the law firm V.K. Vandaveer, P.L.L.C.  Attorney Vandaveer also authors the blog U.S. Business and Immigration Law.

DISCLAIMER: The information in this article is NOT legal advice, nor does it establish an attorney-client relationship between you and the attorneys or law firms above. Legal advice often varies between situations. If you want legal advice for your specific circumstances, you must consult with an attorney.

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H-1B workers do in fact have several options and legal rights. Some of those rights are very powerful.

However, those rights will not do you any good unless you are willing to pursue them. To fight to enforce your rights. To make educated and bold decisions, and stick to them. To know that, in order to achieve what you want to, you will have to take on some risks.

A fraudulent H-1B employer has many more risks than an underpaid H-1B worker does. Many H-1B employers would be willing to discuss an amicable settlement with an underpaid H-1B worker rather than deal with a legal action, and face the potentially severe liabilities. Yet the employers don’t seem to worry nearly as much as do the H-1B employees.

If you are an H-1B worker, and are too fearful to talk to your employer about unpaid wages, I can understand where you’re coming from, and I could never judge you for feeling that way.

However, I do ask that you not contact me, asking me to spend hours of time discussing legal rights that you know you’d never pursue anyway, because of your fears. Only if it’s possible you could commit to assuming some risks and pursuing your rights could an attorney possibly help you.

If you don’t take action, you may well face risks (e.g. an employer’s underpayments could be hurting your immigration status). If you do take action, you may well face risks (e.g. the employer may threaten deportation). You’ve got to deal with your situation.

In dealing with your situation: (1) don’t let fear control you; (2) know the risks are there, and that you must deal with them; (3) educate yourself about your legal rights and options; (4) learn what options present the lowest risks and highest potential benefits; (5) make an educated decision; and (6) don’t second-guess yourself. Only if you are willing to overcome your fear and accept risks would you have any chance to obtain what you’re owed, and to improve your immigration status and options.

Additional Information

For more H-1B employee rights information, please visit the blog www.h1blegalrights.com.

To learn more about H-1B rights and options, please see these posts:

• “Employee Tip: If You’re an H-1B Worker Being Underpaid Wages, Consider These Things”
• “5 Reasons Why an H-1B Employer Would Want to Reach Settlement With An Underpaid Employee”
• “H-1B Workers’ Fears vs. Fighting for Your Rights”
• “FAQS- If You Were Underpaid as an H-1B Worker and Are No Longer in the U.S.”

For information about H-1B Rights & Immigration Rights Attorneys Michael F. Brown and Vonda K. Vandaveer, please visit here.

DISCLAIMER: The information in this blog is NOT legal advice, nor does it establish an attorney-client relationship between you and Employee Rights Attorney Michael Brown or the law firm of Peterson, Berk & Cross. Legal advice often varies between situations. If you want legal advice for your specific circumstances, you must consult with an attorney.

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#1: Can I bring a legal claim in the U.S. against my former employer, when I no longer live in the U.S.?

Probably yes. There are cases in several areas of U.S. law where non-citizens are allowed to pursue legal action against a U.S. citizen or U.S. entity (e.g. their former U.S. employer). As a non-citizen, you probably have “standing” to bring a U.S. legal claim when that claim is based on events that occurred while you were working in H-1B status.

#2: It has been several years since I left my underpaying H-1B employer and left the U.S.- is it too late to file a legal claim? What are the deadlines?

If your wages were underpaid sometime within the last four (4) years, you still have time to consider taking legal action against your former employer.

There are several deadlines that may apply to your situation, ranging from one (1) to four (4) years or possibly longer.

The Department of Labor (DOL) has a one (1)- year deadline for filing a complaint for being paid under the prevailing wage.

Even when the DOL deadline has passed, there are other laws that may apply to your situation that have longer deadlines. For example, State wage laws often have two (2)- year or three (3)- year deadlines. Some State and Federal fraud laws have longer deadlines-one important federal fraud law that applies to underpaid H-1B wages has a deadline of four (4) years. Some applicable laws’ deadlines may be even longer.

#3: What makes a legal claim “good” or worth pursuing?

These are the most important factors that are likely to make a legal claim “good:”

• Your deadline hasn’t passed.

That is, at least some of your underpaid wages occurred within the last four (4) years.

• The amount of your underpaid wages is significant, i.e. tens of thousands of U.S. dollars or more.

If you were only underpaid a few weeks’ wages, then a legal action is probably not worthwhile for you to pursue.

If you lost a significant amount of wages, tens of thousands of dollars or more, then there is more you would stand to gain from a legal action.

Also, the greater the amount of lost wages, the more likely it is that an attorney would represent you on a contingency basis instead of requiring fees in advance. (Under a contingency arrangement, you do not have to pay your attorney out-of-pocket legal fees. Fees are only paid by the employer if you obtain a settlement or legal award. For more information on this subject, please see Question #7 below).

• You have LCA and pay stub documentation proving you were underpaid.

It will help your legal claim a great deal if you have copies of: (1) your Labor Certification Application (LCA) or other documents that prove what your prevailing wage was; and (2) pay stubs or other documents that prove your H-1B employer paid you less than the prevailing wage.

If you do not have these documents, you can still pursue your claim. Having these documents, however, makes a claim easier to prove and pursue.

#4 Will I have to file a legal complaint for my matter, or is it possible I can reach an agreement (settlement) with the employer without having to pursue a lawsuit?

Often, an H-1B worker will be able to reach a settlement with the employer without having to file a legal complaint. It is often in the employer’s best interests to reach a settlement rather than face the costs and risks of litigation. Employers often stand to lose a lot of money- if they lose a judgment, they may have to pay for your unpaid wages, pay additional penalty monies, and pay their own attorney fees and legal expenses. Thus, it is often in the employer’s best financial interest to reach a reasonable settlement with its former H-1B worker, before a legal complaint is filed.

If a legal complaint is filed, it is still possible that a settlement can be reached in the earlier stages of litigation, before the parties have spent a significant amount of money on litigation.

#5 If I pursued my unpaid wages from my former H-1B employer, would I have to travel to the U.S.?

Chances are you would not have to travel to the U.S. As mentioned above, there is a good chance you could reach a settlement with your employer before filing a legal complaint. If a legal complaint is not filed, there is no requirement that you travel.

If you cannot reach a settlement with the employer and you decide to file a legal complaint, then after the complaint is filed you could be required to travel to the U.S. As part of litigation, there are two potential occasions you may have to travel: You could be required to attend a deposition in the U.S., and you could be required to testify at trial. However, many cases in litigation are resolved before these occasions (a deposition or a trial) arise. In addition, if a deposition is necessary, it is possible the court will permit a video deposition so that you do not need to travel to the United States.

The bottom line is this: (1) the chances are good you could settle your unpaid wage matter without having to travel to the U.S.; (2) if you don’t settle your matter before litigation, you have a choice of filing a complaint (and possibly commit yourself to traveling) or not filing a complaint; and (3) if you file a complaint, your legal case may still be resolved without you having to travel to the U.S.

#6 If I have to travel to the United States for litigation, do I need a visa?

What if you do wind up filing a legal complaint and you do reach the point you are required to travel to the U.S. and attend a deposition or trial? Would you be legally-allowed to travel to the U.S.?

Visa regulations specifically allow foreign nationals to come to the United States on a tourist/business visa for litigation purposes. Therefore, if you are eligible for the Visa Waiver Program, you may enter the United States under that program and stay up to 3 months. Otherwise, you will need to obtain a regular tourist visa from the U.S. consulate in your country if you do not already have one.

If you are subject to a bar to re-entry because you significantly overstayed your last visa, engaged in unauthorized work, or are otherwise inadmissible to the United States, you may qualify for a non-immigrant visa waiver of inadmissibility. If these circumstances apply to you, you should consult with an attorney to discuss your options.

#7 If I hire an attorney to help pursue my unpaid wages from my former H-1B employer, how much would that cost me?

If you retained an attorney for your matter (the attorney must be someone licensed in the U.S.), there are several types of fee arrangements, some of which don’t require you to pay anything unless you win.

Some U.S. attorneys will represent H-1B workers with unpaid wages on a “contingency” basis.

If the attorney will work on contingency, that means you do not have to pay the attorney anything out of your pocket. The attorney is only paid if you settle or win your case. When you win your case, the H-1B employer will pay a percentage of your settlement or judgment (traditionally 33 1/3%) to your attorney for legal fees.

There are other types of legal fee arrangements where you do have to pay out of pocket legal fees. For example, many attorneys charge hourly legal fees, usually ranging between $150/hour to $300/hour (rates may be higher or lower depending on the locale and other factors). This hourly type of fee arrangement will require that you pay out-of-pocket money to your attorney, and you will get a regular bill from the attorney.

An hourly fee arrangement is ethical and common, and it could turn out to be a better financial deal for you in the long run than a contingency arrangement. However, the disadvantage of hourly fees is that these hours can add up quickly and become very expensive for you. In a short time (a matter of a few weeks or months), you could be charged thousands of dollars in hourly fees. If you pay hourly fees for long-term litigation, you could easily incur tens of thousands of dollars in hourly fees.

If you retain an attorney on an hourly basis, you should ask that attorney for a detailed budget and estimates of what you can expect to pay throughout the litigation process.

As you can see, one important issue to consider when you hire an attorney is whether that attorney will have a contingency fee arrangement or a different arrangement that requires you to pay out-of-pocket legal fees (like hourly billing).

Another important factor to consider when hiring an attorney is whether that attorney is experienced in dealing with H-1B wage issues, immigration issues, and employment disputes and litigation.

There is a blog post here (Important Questions to Ask When Hiring an Attorney), which details many important factors to consider when retaining an attorney.

Additional Information

For more H-1B employee rights information, please visit the blog www.h1blegalrights.com.

To learn more about H-1B rights and options, please see these posts:

• “Employee Tip: If You’re an H-1B Worker Being Underpaid Wages, Consider These Things”
• “5 Reasons Why an H-1B Employer Would Want to Reach Settlement With An Underpaid Employee”
• “H-1B Workers’ Fears vs. Fighting for Your Rights”
• “FAQS- If You Were Underpaid as an H-1B Worker and Are No Longer in the U.S.”

For information about H-1B Rights & Immigration Rights Attorneys Michael F. Brown and Vonda K. Vandaveer, please visit here.

This post was jointly authored by Employee Rights Attorney Michael Brown of the law firm of Peterson, Berk & Cross, and Immigration Attorney Vonda K. Vandaveer of the law firm V.K. Vandaveer, P.L.L.C. Attorney Vandaveer authors the blog U.S. Business and Immigration Law.

DISCLAIMER: The information in this article is NOT legal advice, nor does it establish an attorney-client relationship between you and the attorneys or law firms above. Legal advice often varies between situations. If you want legal advice for your specific circumstances, you must consult with an attorney.

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