If you have been unpaid, underpaid, or benched by your H-1B employer, or if your employer has forced you to pay the filing fees for your H-1B application, you may have a legal claim against that employer.
If that is the case, should you immediately file a legal complaint? No. Not immediately.
Before you take any action, you should consult with a knowledgeable H-1B rights attorney who can evaluate your individual situation and determine if an initial negotiation with the employer might obtain a more satisfactory outcome.
But, why would your employer want to settle with you? Here are some reasons that a settlement, instead of a lengthy legal complaint, might appeal to an employer:
Reason 1: If your employer refuses to settle with you, and you proceed to file a legal complaint, 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. Furthermore, the employer would have to reimburse the employee for any prohibited payments or wage deductions demanded of the employee such as the H-1B petition filing fee or any early termination penalty.
Violations can be very straightforward. Often, a legal adjudicator can compare documentation, readily determine a worker has been underpaid, and/or the employer has made unauthorized deductions, and require payment from the employer.
Reason 2: Your employer may have to pay unpaid wages to other H-1B employees as well.
If a legal complaint were filed, the U.S. Department of Labor may investigate not only the employer’s underpayment of the complaining employee, but also the wages of the employer's other employees, to see if they were underpaid too. If that employer were confronted with the prospect of having to pay all of its underpaid H-1B employees, the employer might be more inclined to settle with you, and avoid a Department of Labor investigation that could lead to multiple findings of violations of the regulations.
Reason 3: Your employer could have to pay triple your wages, and additional money, if the employer loses a fraud claim in federal court.
In some circumstance, an underpaid H-1B worker may be able to file a complaint in federal court under various fraud laws. A federal complaint can even be filed by a worker who has been deported or 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.
If the employer is making fraudulent underpayments of wages and understands that these actions can lead to the financial risks of a federal complaint, it is more likely the employer will consider settlement rather than face the possible consequences of federal litigation.
Reason 4: Your employer, if found in violation of Department of Labor regulations, could be subject to heavy fines.
In addition to requiring payment of previously-owed wages, where certain types of violations exist, the Department of Labor can impose fines ranging from a maximum of $1,000 to $35,000 per violation committed by an employer. Where more than one violation is found, these fines can add up quickly. The unpleasant prospect of paying both previously-owed wages and fines should serve as a further incentive for an employer to reach settlement rather than risk going to court and losing.
Reason 5: The employer, if found in violation of Department of Labor regulations, could lose its permission to employ H-1B or other foreign workers.
If found in violation, your employer could also lose its right to petition for immigrant and non-immigrant workers for up to three years. Remember, this issue too is not something for you to discuss with your employer. Your focus should remain on the wages you were not paid. The Department of Labor will consider the examination of an employer's business practices and its right to petition for immigrant and non-immigrant workers.
Given the risks that an H-1B employer faces for underpaying wages and/or committing fraud, it often decides to reach a reasonable settlement with an underpaid H-1B worker as opposed to facing the severe potential consequences of formal legal actions.
Remember, it is not wise to rush to threaten an underpaying H-1B employer with legal action, demand settlement, etc. You should strongly consider speaking with an H-1B immigration rights attorney before you take any direct action against your employer.