By Attorneys Robert L. Reeves and Joseph I. Elias
For many guest workers the H-1B status is an excellent opportunity to work and remain in the U.S. while a green card is processing. When the USCIS grants a worker H-1B status, it places certain obligations, that if not kept, may jeopardize the worker’s ability to extend the status or even obtain the green card.
The most serious and draconian obligation is for the worker to receive the wage listed on the petition. The CIS has interpreted immigration law in such a way that it finds the H-1B employee is in violation of H-1B status if the employee does not at least receive the wage listed on the petition. The CIS maintains that the employee, who is receiving lower than the required wage, has the obligation to file a formal complaint with the employer and even the Department of Labor. If the H-1B employee takes no steps to try and receive the required wage, the CIS finds that this worker is not maintaining status and therefore cannot obtain an extension of status. If the failure to maintain status reaches 180 days, the person also generally becomes ineligible to adjust status to a green card holder.
This is a very harsh interpretation by the CIS and does not take into consideration that the employer is the one filing the petition or that the employer exercises a much higher bargaining power. It is unrealistic to expect a worker to challenge his employer over a wage received for fear the worker may wind up terminated. But, the CIS is unsympathetic and states that if the worker is terminated, so be it. CIS’s position is that U.S. labor laws can protect this employee. This policy fails to take into account the great time and expense it takes to pursue labor law relief through the Department of Labor and the courts. The CIS has stated that H-1B employees who show that they have made an effort to correct wage issues from the beginning can receive a favorable exercise of discretion and may change H-1B employers and extend H-1B status.
The immigration bar disagrees with the CIS’s analysis that penalizes a worker who is not receiving the required wage. But until the CIS is challenged in Federal Court, its interpretation will control. Practitioners have recently seen an alarming new trend coming out of the CIS in H-1B extensions where the worker has not received the proper wage. The CIS is deciding that since the employer did not pay the wage in the first H-1B, it does not intend to pay the wage in the extension. So, the filing of the extension is deemed to be fraudulent and must be denied. This is particularly onerous for the worker because when a petition is denied on the basis of fraud, the worker is also deemed to have been out of status on the date his I-94 card expired. If the worker has 180 days or more out of status, this triggers a 3-year-bar to reentering the U.S. Since many CIS offices take 180 days or more to decide a case, this places many workers at risk for harsh and unwarranted punishment by the CIS.
There are a myriad of legitimate reasons that a worker does not receive the wages listed on the petition. The most common is the employer’s need for the position is reduced from full-time to part-time. In this type of situation the employer should immediately file an amendment to show the position’s hours have been reduced. Employers should not wait until it is time to file the extension to inform the CIS. And despite contrary belief, one can be petitioned for part-time H-1B employment.
Because the CIS treats the non-receipt of the proper wages so harshly, it is very important for H-1B employees to regularly check their wage statements and confirm that they are receiving the correct wage. If they are not, they should immediately contact an immigration practitioner to advise them on what steps need to be taken to preserve their H-1B status. The problem should not be ignored because it will not just go away. Failure to address it straight on can result in the permanent loss of H-1B status (either with the same employer or a new employer), triggering of 3 and 10-year-bars, and loss of the ability to adjust status to a permanent resident. The solution may be as simple as filing an H-1B amendment, or as complex as contesting the wage with the employer and perhaps even the Department of Labor. This can be a delicate situation and should only be entrusted to those who have the experience to handle it properly.