Negotiation & Settlement May Appeal to H-1B Employer

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.

For a free H-1B consultation with Attorney Van Wormer, please contact our office at (703) 244-6733 or contact@vanwormerlaw.com. 

Photo credit.

Important Note: The information provided on this blog is of a general nature and may not apply to any particular set of facts or under all circumstances. It should not be construed as legal advice and does not constitute an engagement of Van Wormer Law or establish an attorney-client relationship. No attorney-client relationship exists until Van Wormer Law has completed a conflicts check and the prospective client signs a representation agreement.

Deadlines / Statutes of Limitation for H-1B Wage Complaints

If you are faced with a situation where your H-1B employer is underpaying you, not paying you your wages at all, or threatening you in some other way, it is important to be aware of the deadlines, the legal statutes of limitation, that apply to your ability to bring a legal challenge against the employer.

1. DEPARTMENT OF LABOR: If you are considering a filing a wage complaint with the U.S. Department of Labor (DOL), be aware that there is a one year deadline for filing. This means that in most situations, you have one year after ending your relationship with your employer (whether you are terminated or resign) in which the DOL allows you to file a wage complaint. A DOL complaint, although not always the best or strongest claim option, is nonetheless an important element among the options available. As such, it is important to consider this one year deadline when evaluating your H-1B legal rights.

2. CIVIL WAGE COMPLAINT: If your situation gives you the option to file a civil wage claim in court, that type of wage claim often has a two year deadline for claiming wages. This means that if you filed a civil complaint on January 1, 2010 that included this type of wage claim, you could only pursue the wage claim for unpaid wages dating back to January 1, 2008.

3. OTHER COMPLAINTS: Depending on your situation, there may be other claims available to you that have deadline periods longer than two years. For example, certain types of fraud claims (as opposed to wage claims described at 1. and 2 above) may apply to specific situations, and these fraud claims can have deadlines that extend to four years or more.

Ultimately, you need to be aware that important deadlines apply to your situation. It is wise to learn about the deadlines that apply to your specific facts as soon as possible so that you can preserve your legal rights and keep the best options open when you make your legal plans, ideally with the assistance of a qualified immigration and/or H-1B rights attorney.

Caution: Being aware of the deadlines that affect your H-1B rights does not mean that you should complain immediately to your employer about your unpaid wages or take immediate legal steps against the employer. If, for example, you are looking for a new H-1B employer to whom you wish to transfer your H-1B visa, it might make sense to delay taking legal action and accept that you may lose the ability to pursue certain legal damages due to approaching deadlines. Whatever your final strategy, it is best to make sure you know all the deadlines that apply to your situation so that you can make the best, well-informed decision.

For a free H-1B consultation with Attorney Van Wormer, please contact our office at (703) 244-6733 or contact@vanwormerlaw.com.

Important Note: The information provided on this blog is of a general nature and may not apply to any particular set of facts or under all circumstances. It should not be construed as legal advice and does not constitute an engagement of Van Wormer Law or establish an attorney-client relationship. No attorney-client relationship exists until Van Wormer Law has completed a conflicts check and the prospective client signs a representation agreement.

About the Blog, and the Attorney Author

Welcome to the Legal Rights for H-1B Visa Holders blog!

Our Blog:

At its core, this blog provides information to future, current, and past employee H-1B visa holders about their H-1B legal rights. Broken down, those areas include:

WAGES: The right to be paid the prevailing wage, and to avoid improper wage deductions.

BENEFITS: The right to receive the same health insurance and other benefits given to the employer's U.S. citizen employees.

WORK / NO BENCHING: The right to work under the job title and be given the responsibilities promised on your LCA (Labor Condition Application); and the right to avoid being "benched" by your employer.

PURSUING SETTLEMENT: The right to have the option of seeking a settlement with the under- or non-paying employer without filing any legal complaints.

PURSUING LEGAL COMPLAINTS: The right to pursue legal complaints against an under- or non-paying employer, regardless of your current location (inside or outside the U.S.), and regardless of your current job status (whether or not you are currently working with the employer who is causing you problems).

NO RETALIATION: The right to complain / seek to be paid / ask to receive fair treatment without having your employer fire you, threaten you, try to deport you, or to engage in other retaliatory behavior.

H-1B TRANSFER: The rights surrounding the transfer from one H-1B sponsoring employer to a new H-1B sponsoring employer.

The Author:

This blog is authored by Immigration/H-1B Rights Attorney Rachel H. Van Wormer from the law firm Van Wormer Law, LLC. She runs a full-service immigration law practice in Arlington, Virginia, where she also represents H-1B employees with legal claims involving unpaid wages, benching, or fraud. She is admitted to practice law in the Commonwealth of Virginia, and is a member of the American Immigration Lawyers Association (AILA), the American Bar Association (ABA), and the Virginia Bar Association (VBA). She also serves as co-chairperson of the Immigration Law Forum of the Women’s Bar Association of the District of Columbia.

You can learn more about Attorney Van Wormer by visiting her law firm website, http://www.wdcimmigrationlawyer.com/. For a free H-1B consultation with Attorney Van Wormer, please contact our office at (703) 244-6733 or contact@vanwormerlaw.com.

Important Note: The information provided on this blog is of a general nature and may not apply to any particular set of facts or under all circumstances. It should not be construed as legal advice and does not constitute an engagement of Van Wormer Law or establish an attorney-client relationship. No attorney-client relationship exists until Van Wormer Law has completed a conflicts check and the prospective client signs a representation agreement.