H-1B Non-immigrant Employees are Entitled to "Bench Pay" when non-productive status due to Employer decision

by Michael Papuc

Attorney at Law

44 Montgomery Street, Suite 2405

San Francisco, California 94104

415-773-1755

Michael.Papuc@gmail.com



San Francisco Attorney Michael Papuc represents employees in California who have been penalized for leaving their job for a competitor of their former employer. Many of his clients are H-1B non-immigrant employees who have been penalized by former employers for moving to another job. Attorney Michael Papuc has handled cases of employers’ failure to pay the H-1B "bench pay," when the H-1B is in non-productive status due to decision of the employer or failure of the employer to place the H-1B with an on-site client.

Under Federal law, 20 C.F.R. 655.731(c)(7), when an employer brings into the United States an H-1B non-immigrant employee from another country, and has no work for the H-1B, the H-1B non-immigrant employee is entitled to receive his entire wage, calculated as the prevailing wage the employer submits to the Department of Labor. This is commonly known as "bench pay."

There are many "body shops" which bring into the United States computer programers and engineers under H-1B status. The body shops often have company apartments (temporary housing) ready for the H-1Bs, where there may be as many as 5 to 10 people living in a two bedroom apartment until work is found for the H-1B. The employer will then contract out the H-1B to an end client where the H-1B will ultimately work on site. Under 20 C.F.R. 655.731(c)(7), the employer is responsible to pay the H-1B his or her entire wage during all down time periods, not due to fault of the H-1B, including "decision by the employer (e.g., because of lack of assigned work), lack of a permit or license, ...."

A claim for non-payment of wages may be brought to the Department of Labor or in a formal court action. These cases often lend themselves to class action status. However, fear of the H-1Bs of being black-listed by their employers and not being able to find work in the U.S. typically prevents any such action from taking place.