Employee Tip: If You’re an H-1B Worker Being Underpaid Wages, Consider These Things

If you are an H-1B professional worker who is being underpaid wages, please know that you have legal rights. The information below describes your rights as an H-1B professional, and factors and options you should consider before taking legal action or pursuing your wages.

Please note this post does not provide legal advice- if you want legal advice, you should contact an attorney and discuss your specific circumstances. If you are interested in legal assistance from attorney-author Michael Brown or his law firm DVG Law Partner for your matter, please contact them here:

• Before you complain to the employer or file a legal complaint, consider what deadlines (statutes of limitations) are involved.

If you think you may bring a legal challenge against your H-1B sponsor employer because they have not paid your full wages or have otherwise treated you unfairly, please know that several deadlines (or “statutes of limitations”) apply to your matter.

First of all, if you are considering a wage complaint with the Department of Labor (DOL), there is a one-year deadline for filing such a complaint. A DOL complaint (as discussed more below) may not necessarily be your best or strongest claim, but because it is among your options it is important to take the one-year deadline into account.

You may have the option to file a civil wage claim in court, and several such wage claims have two-year deadlines. If, for instance, you filed a civil complaint on January 1, 2009 that included such a wage claim, you could only pursue the wage claim to recover unpaid wages dating back to January 1, 2007.

There may be other claims available to you that have longer deadline periods. Certain fraud claims may apply to your situation (separate from or in addition to wage claims as mentioned above), and such fraud claims may have deadlines up to four years or more.

The bottom line is this: (1) be aware that deadlines apply to your matter; (2) as soon as possible, you should learn about all the applicable deadlines, and your legal rights and options; and (3) make plans in light of those deadlines and options.

This does not mean that you immediately have to complain to your employer about unpaid wages, or take immediate legal action against your employer. For example, an H-1B employee may decide to delay legal action (and accept some losses of potential legal damages under statutes of limitations), because in the overall picture it is better the employee find a new employer and make an H-1B transfer to a new employer-sponsor before pursuing a legal action. Waiting a set amount of time may well be the best option under your particular circumstances. But it is never too early to learn about all your potential options and deadlines, so you can know the risks, make informed decisions and take well-timed actions from day one.

To learn more about the legal rights and deadlines that apply to your situation, you can consult with an H-1B employee rights attorney. Many attorneys (including me) offer free phone consultations to discuss an employee’s specific circumstances, deadlines and options.

• Consider the risk of retaliation, and any risks to your immigration status, before you challenge the employer’s underpayment of wages.

If your employer is not paying you the wages you were promised, then several laws may be violated, as is described below. Further, if your employer retaliates against you because you complained about unpaid wages, there are laws that prohibit retaliation as well.

However, just because a law exists (e.g. a law that prohibits retaliation, or a law that prohibits driving through a red light) doesn’t mean that people will obey that law (some people still run red lights, and some employers still retaliate against workers for making complaints about unpaid wages).

Before you complain about your unpaid wages, you should evaluate whether the employer may retaliate, and you should make sure you are in a secure position under immigration law (e.g. at a new job, with your H-1B lawfully transferred).

If you are considering a complaint against your current employer, consider how your employer may react, and how strong the risk of retaliation is. If the risk of retaliation is high (e.g. if the employer has threatened visa workers with job termination and deportation if they make complaints), then you should consider the option of finding a new employer/visa sponsor before you pursue a complaint. After you have transferred to the new employer, you will be in a better position to start a legal action against the underpaying employer.

If you do decide to transfer to a new employer, you should strongly consider consulting with an immigration attorney: that is, an independent immigration attorney who was not retained by the underpaying employer and who does not represent that employer’s interests.

In my review of H-1B workers’ potential wage claims, I work with immigration counsel who is specifically involved to advise the H-1B worker on his or her visa issues and interests. That attorney has no affiliation with the original (underpaying) employer, and is working only in the H-1B employee’s interests. An attorney like this- one who is retained only for your interests- can advise about the legalities of an H-1B transfer to a new employer and other issues, and you don’t have to worry about the attorney owing any duty to your former employer, or having any conflict of interest.

If your wage complaints concern a former employer, and you already transferred your H-1B visa to a new (and hopefully more honest) employer, these are probably better circumstances for a legal action. When you have a new employer and your immigration status is intact, you can pursue your unpaid wages from your former employer with far less risk of retaliation.

The bottom line is this: before you pursue any complaint about an employer, you should consider the big picture and consider any risks of retaliation or risks to your immigration status. An attorney can help you plan and navigate through any such risks, and help you transfer to a new employer before you pursue legal action against the underpaying employer.

• Consider the laws and legal rights that protect H-1B workers.

If your H-1B employer has underpaid you or otherwise treated you unfairly, there are several types of laws that may potentially be violated. The laws include: (1) immigration law and Department of Labor (DOL) regulations (e.g. regulations requiring that the “prevailing wage” be paid to H-1B workers, or regulations requiring that the employer not deduct certain expenses from H-1B workers’ paychecks); (2) federal overtime and minimum wage laws; (3) State wage laws; and (4) various fraud laws.

Here is a link to immigration regulations that address an employer’s obligations to you. These laws include, but are not limited to, the employer’s obligations (1) to pay you the prevailing wage or actual wage; (2) to provide you comparable benefits (health insurance, etc.) as U.S. workers are provided; (3) to not make unfair deductions from your paychecks (e.g. to cover certain visa costs, rent deductions, etc.).

The DOL provides summary information about H-1B employees’ rights at this webpage and this one as well.

As DOL’s web page indicates, H-1B workers can file wage complaintsto DOL – you can find your local DOL contact information here, to learn more about filing a wage complaint.

Please note that the DOL’s authority is limited. For example, while you can submit a complaint to DOL and they can potentially determine that the employer violated certain wage or immigration laws, the DOL does not have authority to consider several other types of claims (e.g. fraud claims, State wage law claims), and cannot award several remedies and damages (monies) that you could pursue with a complaint in court.

This is not to say you should file a complaint in court, or should not file a complaint with DOL. Rather, you should know there are advantages and disadvantages in pursuing a DOL complaint rather than a court complaint. The same is true vice versa.

Again, you can benefit from having an H-1B rights attorney review your circumstances, advise you about various options, and the advantages and disadvantages of each.

• Keep Documentation.

If there is any possibility that in the future you may pursue your unpaid wages or pursue a legal complaint, you must keep documentation. Specifically, you should: (1) save all your immigration documents (Labor Certification Application, employer’s letters to government, etc.); (2) save all your payroll-related documents (paycheck stubs, W-2 forms, copies of timecards, copies of work schedules, copies of employer’s notes and letters about wages, etc.); (3) save copies of employment contracts, memos, letters, emails and any other documents from the employer that relate to your wages, employment status, visa status, discipline, or job termination.

You should also keep a journal. In the journal, you should write down dates, names, and descriptions of important events. For example, your journal should describe: (1) any threats the employer made (e.g. if someone threatened to deport employees who complained about being underpaid, you should write down the name and job title of the person who made this threat, the date the threat was made, and a description of exactly what was said); and (2) any complaints or objections that you made to the employer about unpaid wages or unfair treatment (e.g. on X date, you complained to Manager Y about being underpaid and having unfair deductions from your paycheck). If anything happens during your employment that you feel is unfair or important, you should write down that information in a journal; otherwise, you may forget important details later.

• Consider the various actions you could take.

An H-1B worker who has been underpaid may take one or more of the following actions: (1) research internet information (e.g. DOL’s websites, legal websites and blogs, etc.) about your legal rights and options; (2) contact an H-1B employee rights attorney to discuss your legal rights and options; (3) contact an immigration attorney (other than any attorney your employer secured or who has a conflict of interest with you) to discuss any visa transfer or immigration concerns you may have; (4) contact DOL and/or a State wage-enforcement agency to discuss your legal rights and options; (5) assuming there is no significant risk of retaliation, you could contact the employer (through an attorney or on your own) to try to resolve your matters without legal action; (6) file a legal complaint with DOL or a State wage-enforcement agency; and/or (7) file a legal complaint in federal or state court.

Each of these actions has potential advantages and disadvantages, and an attorney or government adviser could help you clarify your deadlines, options and plans.

If you have felt trapped or taken advantage of, please know there is light at the end of the tunnel. You have legal rights, and potentially strong rights at that. Regardless of whether you pursue your unpaid wages, you should do all you can to ensure you have employment where the employer respects your H-1B rights, and human rights. I wish you the best.

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.”

Please note this post does not provide legal advice- if you want legal advice, you should contact an attorney and discuss your specific circumstances. If you are interested in legal assistance from attorney-author Michael Brown or his law firm DVG Law Partner for your matter, please contact them here: