FAQS- If You Were Underpaid as an H-1B Worker and Are No Longer in the U.S.

If you were underpaid as an H-1B, and are now outside the U.S., below are some frequently asked questions and answers.

#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 attorney Michael Brown, and 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.