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 H1B Employee Rights and H1B Worker Protection Rules 

H1B Visa Employee Rights:

H1B employees and workers are granted a number of legal rights.

The H1B employer must pay the worker at least the same wage rate as paid to other US employees with similar experience and qualifications or the local prevailing wage for the occupation in the area of employment, whichever is higher.

The H1B employer must pay for non-productive time caused by the employer or by the worker's lack of a license or permit.

The H1B employer must offer the worker fringe benefits on the same basis as its other employees.

Also, the H1B employer company may not require the H1B worker to pay a penalty for leaving employment prior to any agreed date. However, this restriction does not preclude the employer from seeking "liquidated damages" pursuant to relevant state law. Liquidated damages are generally estimates stated in a contract of the anticipated damages to the employer caused by the worker's breach of contract.

No employer of H1B visa workers may intimidate, threaten, blacklist, discharge, or in any other manner discriminate against any employee, former employee, or job applicant for disclosing violations of H1B visa provisions or for cooperating in an official investigation of the employer's compliance.

The H1B employer must give the worker a copy of the LCA.

US workers and H1B workers may also examine the public disclosure documents that the employer is required to maintain that provide information about the employer's compliance with the attestation elements.


* Once an H1B Sponsoring Company has brought an employee to the US on an H1B visa, should the H1B sponsoring company dismiss the H1B employee before the expiry of the visa, the H1B sponsor company is liable for any reasonable costs that the employee incurs in moving him/herself, his/her effects, and (where appropriate) his/her dependants, back to his/her last foreign residence. This provision covers only dismissal, it is not relevant when an H1B employee chooses to resign or transfer their H1B visa to a new H1B sponsoring company to remain in the USA.




H1B Worker Protection and Law Enforcement Regulations:

For every H1B visa petition filed with the USCIS, there must be included a Labor Condition Application (LCA) certified by the U.S. Department of Labor. The LCA is designed to ensure that the wage offered to the H1B non-immigrant worker must meet or exceed the "prevailing wage" in the area of employment.

The LCA also contains an attestation section designed to prevent the program from being used to import foreign workers for the purpose of breaking a strike, or for the purpose of replacing U.S. citizen workers. Under the regulations, LCAs are a matter of public record.

US Corporations hiring H1B workers are required to make these records available to any member of the public who requests to look at them. Copies of the relevant records are also available from various web sites, including the Department of Labor.

Theoretically, the LCA process appears to offer protection to both USA and H-B workers. However, according to the U.S. General Accounting Office, enforcement limitations and procedural problems render these protections ineffective. Ultimately, the employer, not the Department of Labor, determines what source it will use to determine the prevailing wage for an offered position, and it may choose among a variety of competing surveys, including its own wage surveys, provided that such surveys follow certain defined rules and regulations.

The USCIS has announced that after completing a policy review that it was clarifying that to avoid H1B quota limits, individuals who spent one year outside of U.S. and did not exhaust their entire six year term can choose to be re-admitted for "remainder" of initial six-year period without being subject to the H1B visa cap.

The USCIS has also announced that after completing a policy review that it was clarifying that "any time spent in H4 status" will not count against the six-year maximum period of admission applicable to H1B workers.

 

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