Unfortunately, one of the realities of working in the IT industry under an H1B visa is the practice of “benching” employees. Benching occurs when an H1B employee is not paid when there is no work for them, usually because they are periodically assigned as ‘consultants’ to other companies. Because of this, there may be times of no work or payment while in the US on an H1B visa.
Firms that utilize this practice can face lawsuits under US labor and immigration laws, but that does not really help the foreign nationals who rely on their H1B visa to retain legal status in the US.
The real test for remaining in the US on an H1B visa is getting paid, rather than actually having work assigned. To maintain immigration status you must submit pay stubs as proof that you are working, but what if your employer is not paying you? There are several options available:
What Are Your Options If You Have Been Benched?
- Make a Complaint With Your Current Employer
If you were benched without pay, it is possible to pursue a claim against the employer. You can first demand 3 months of pay stubs which will give you the right to change employers while maintaining status.
You can also simply request to be given paid work, and this may be the easiest first step. The employer might be concerned that any further action that you take will call attention to their illegal benching activity.
However, if you were not paid, obtaining fake pay stubs is illegal, so there is another alternative that is better. If you objected or made a complaint with your employer, keep some record of it since you may need it to prove you attempted to remedy the situation.
- “Extraordinary Circumstances”
You can file a complaint with the USCIS claiming “extraordinary circumstances” with evidence that you were benched without pay. If the USCIS rules in your favor, you can then legally seek a new employer without having to leave the US. Essentially, the USCIS will waive the pay stub requirement and allow you to find a new H1B sponsor.
The factors considered in an “extraordinary circumstances” claim are:
- The reason you did not maintain status (illness, no work assigned, no payment)
- The length of time you were out of status
- Any objections or actions that you took with your employer (keep evidence of any objections or complaints)
Specifically, being terminated in retaliation for a benching complaint can constitute “extraordinary circumstances” if you can show that is the reason that you are out of status.
- Find a New Employer For a Transfer of Your H1B While Still in the US
If you have a valid H1B visa in your passport you can find a new employer who will sponsor a new H1B visa for you. The only caveat is that the H1B visa should be valid long enough to file the new petition, and part of that validity may mean showing pay stubs from the original employer. Seeking a transfer without valid pay stubs or a favorable ruling for “extraordinary circumstances” may call attention to the fact that you are out of status, but if you find a sponsor quickly then this is still an option.
- Leave the US and Find a New Employer/Sponsor and H1B Visa in Your Home Country
In some cases, it may be easier to leave the US and seek a new sponsor, preferably one that does not have a reputation for benching. If you don’t have a valid H1B visa or are otherwise out of status, this is the recommended course of action. If the USCIS denies your claim for “extraordinary circumstances” then this may be your only legal option.
If you have questions about benching and how to maintain your H1B visa status, please contact us for guidance.
- November 17th, 2016