What Legal Action You can Take Against Your Employer for Violating H-1B Visa Rights?

One needs a sponsoring employer to get an H-1B visa for the U.S. The employee’s dependency on the sponsoring employer leads to cases of employers taking advantage of the employees.

However, the U.S. laws provide rights to H-1B visa holders, and you can take legal action if your current employer or ex-employer is violating those rights.

Which U.S. law provides the H-1B Visa Provision?

Section 101(a)(15)(H) of the Immigration and Nationality Act provides the H-1B visa provisions that allow the U.S. employers to hire or employ foreigners in speciality occupations with specialized skills temporarily.

Your employer must provide you with the Form I-94 and H-1B approval notice to you. Form I-94 forms the legal proof for your stay in the U.S.

The speciality occupations mean you need specialized knowledge and a bachelor degree to work in a specific field. The stay limit of this visa is three years that can be extended for six years.

What are Your Rights as an H1B Visa Holder?

If you are working in the U.S. as an H1B employee, you must know your rights as it will save you from being dominated or exploited by your employer.

However, most of the employees don’t know their rights provided by the Immigration And Nationality Act.

Let’s discuss these rights-

• It is your right to get the actual wage that other employees of the same qualification and position are getting by your employer.
• Your employer is not supposed to ask you to pay any direct or indirect fee to file your H1B visa petition or to pay any financial penalty for leaving your job before the stipulated date.
• Your employer can’t make any discrimination between you and U.S.-based employees. It means he must provide fair working conditions (such as working hours, vacations, working shifts and other benefits) to all the employees.
• The employer must provide you with a signed copy of the LCA (certified ETA 9035 or 9035 E) on or before the date of your reporting to work. By using this document, you can easily verify your position in the company.
• Your employer can’t hold your H1B documents hostage as you have the full right to retain your records.
• You and your employer should keep the actual record of the hours you worked and the wages you got.

What is the Complaint Procedure if an Employer Violates H1B Visa Rights?

As per the authorization of American Competitiveness and Workforce Improvement Act, 1998, If your employer or ex-employer has violated H1B provisions, you can file Form WH-4.

Moreover, you must provide as much information as you can while filling Form WH-4, as it will assist the department of labour in determining all the facts related to the violations of the provisions of H1B.

Once you completed the form forward it to the Wage and Hour Division (WHD) office as per the jurisdiction location of the employer. After you submit the form, the department of labour’s representative may contact you for further enquiry.

Things to Remember

• Please keep the detailed notes of violating acts of the employer along with their name, date and details of the case happened.
• Save all documents and other proofs such as messages, emails, voice messages, recordings and many others to make your case stronger.
• Consider hiring a labour attorney or lawyer to communicate with your employer or ex-employer on your behalf. It will give you support, and your employer or ex-employer will respond better.

Bottom Line

Once an employer is proved guilty, he might bear a hefty penalty and be banned from future access to the H1B program for at least one year.

However, before raising a complaint, you must consider that its a valid complaint and you have all supporting documents as well as ensure that you fulfil all the legal formalities.

About Post Author

Shobha Vats

See author's posts