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Dealing with Benching in the Midst of H-1B Season

On April 1, 2013, USCIS will begin accepting for review H-1B petitions.  For most business immigration practitioners, the filing of H-1B petitions during “H-1B Season” each year has become an annual ritual, like going back-to-school shopping for the kids. For the H-1B petitions that are subject to the annual 65,000 visa quota, practitioners will definitely want to prepare these petitions sooner, rather than later, as last year’s H-1B visa cap was reached on June 11, 2012.  Once the cap is reached, USCIS may not approve any more H-1B petitions that are subject to the cap for the remainder of the fiscal year. Though, in recent years, legislators have criticized the H-1B program for alleged abuse and fraud.  They’ve called for H-1B reform.  The indictment of a Dallas technology consulting company last week for alleged H-1B fraud fuels the critics.  In this particular case, the H-1B employees were completely unaware of their rights under the U.S. Department of Labor guidelines. Employers who hire H-1B employees and fail to pay the wages indicated in the Labor Condition Application during a work stoppage may be violating the terms set forth in the Department of Labor regulations.  The practice of “benching” H-1B employees during a work stoppage is disallowed in these regulations on wage obligations for H-1B employees:

If the H-1B nonimmigrant is not performing work and is in a nonproductive status due to a decision by the employer (e.g., because of lack of assigned work), lack of a permit or license, or any other reason …, the employer is required to pay the salaried employee the full pro-rata amount due, or to pay the hourly-wage employee for a full-time week … at the required wage for the occupation listed on the LCA.

The exception to the above rule is when the employee voluntarily requests leave from work for reasons unrelated to the job (e.g.: holiday, caring for sick relatives, etc.). In the midst of H-1B preparation though, it may be worthwhile to revisit your organization’s practices to minimize potential risks.

Duties to Foreign Nationals

What duty does an immigration practitioner owe to potential H-1B employees to inform them of their rights against benching practices?   This probably depends on what type of representation agreement your firm has with the foreign national.  Is there dual representation in your retainer agreements?  Or has the foreign national been adequately apprised that your firm represents only the employer? In instances where your firm discovers an H-1B employer has been benching its H-1B workers, this may put your organization in a conflicting role to counsel both the employer and the H-1B employee (where there is dual representation).  No doubt practitioners owe a duty to inform clients and protect their clients’ confidences.

Duty to Warn?

Absent a representation agreement with the foreign national, how far should practitioners go to warn H-1B employees that the practice of benching is disallowed?  If there is no legal obligation, do we, as practitioners, have an ethical obligation, as a matter of practice, to include generic language informing H-1B employees against the practice of benching?  The Dallas case, mentioned above, is not an anomaly.  Although relatively few, there exists reports of other benching practices by U.S. employers.  This is a sober reminder that practitioners should take precautions in whom they represent.

Preventative Measures

Practitioners can take preventative measures to avoid conflict and risks when it comes to benching practices.  Ensuring employers are adequately warned in advance of preparing and filing H-1B petitions is one important step, but is it enough?  For certain industries (e.g.: professional service, consulting, or technology), service agreements, statements of work, or other contracts are par for the course.  If the employer’s industry falls into one of these categories, ensure it can provide your firm with the necessary paperwork to demonstrate the foreign national employee will indeed be working on actual projects. What other preemptive measures have you found useful in your practice to avoid benching issues?  We’d love to hear from you.  Please send us your comments below.