New York City H-1B Employment Lawyer

At the Law Offices of David S. Rich, LLC, we have extensive experience representing employees who hold H-1B visas (“H-1B employees,” “H-1B workers,” or “H-1B visa holders”) in New York City and New Jersey with respect to their particular employment and professional disciplinary needs and concerns.

We regularly assist executives and professionals who hold H-1B visas in New York and New Jersey in:

• Drafting, revising, and negotiating employment agreements
• Counseling and providing guidance during the employment relationship
• Drawing up, revising, and negotiating employment separation agreements
• Litigating, arbitrating, and resolving disputes
• Prosecuting claims before the U.S. Department of Labor’s Employment Standards Administration (the “ESA”)’s Wage and Hour Division.

Some of the types of H-1B employees in New York City and New Jersey whom we frequently aid are:

• Securities industry professionals;
• Employees in business and financial occupations;
• Physicians, dentists, and other healthcare professionals;
• Professionals employed at educational institutions, at training schools, and at libraries, including higher education professors;
• Individuals in the professional services sector, such as lawyers, accountants, architects, engineers, and management consultants;
• Mathematicians;
• Physical scientists;
• Social scientists;
• Theologians

• My H-1B Employer In New York Fired Me, But My H-1B Employer Did Not Notify The USCIS That They No Longer Employ Me Or Did Not Pay Or Offer To Pay, To Me, The Reasonable Costs Of My Return Transportation to My Home Country. What Are My Rights?

What Is the H-1B Visa Program?

The H-1B visa is a visa in the United States that allows U.S. employers to employ foreign workers in specialty occupations.  A specialty occupation requires the application of specialized knowledge and a bachelor’s degree or the equivalent of work experience.  The duration of stay is three years, extendable to six years, after which the visa holder can reapply.

What Rights Do I Have As An H-1B Employee?

As an H-1B worker in New York City or New Jersey, you have many rights with respect to your H-1B employer.  Among your rights are the following:

Wages / Benefits:

• You must be paid the actual wage, which is the same wage rate your employer pays other workers with similar experience and qualifications, or the local prevailing wage for your occupation in the area of intended employment, whichever is higher.
• Your employer may not “bench” you. Rather, you must be paid your wages —  at the rate specified in the Labor Condition Application for Nonimmigrant Workers (U.S. Department of Labor Form ETA-9035 & 9035E) (the “Labor Condition Application” or the “LCA”) that your H-1B employer completed and filed with the U.S. Customs and Immigration Services (the “USCIS”) on your behalf — for non-productive time caused by the employer or by the lack of a license or permit.
• Where your H-1B employer fires you before the expiration of your H-1B visa, your employer must effect a bona fide termination of you in order to end its obligation to pay, to you, your wages. A bona fide termination, which cuts off your employer’s liability to you for your wages through expiration of your H-1B visa, requires:
• • notice to you that you are no longer employed;
  • notice to the USCIS that you are no longer employed; and
  • that your employer pay or offer to pay the reasonable costs of your return transportation to your home country or country of last residence.

Failure to comply with the USCIS’s notice-to-the-USCIS and return transportation requirements renders your employer liable to you for your wages through expiration of your H-1B visa, with interest.

• Your employer is required to offer employee benefits to you on the same bases and in accordance with the same criteria as your employer offers such benefits to U.S. workers.
• The company sponsoring you for your H-1B visa is required to classify you as an employee employed by your company, and not as an independent contractor retained by your company. In other words, your H-1B employer and you must have an employer – employee relationship.
• Your H-1B employer is required to pay your wages directly to you, and not to any other individual or entity.

Prohibition On Intimidation Or Retaliation:

• Your H-1B employer may not intimidate, threaten, restrain, coerce, blacklist, discharge, or in any other manner discriminate or retaliate against you because you have disclosed any information to your employer or any other person or entity about an employer’s alleged failure to comply with any H-1B requirements, or because you have cooperated in an investigation, proceeding, or hearing concerning an employer’s compliance with any H-1B requirements.

Illegal Deductions:

• Your employer may not require you to pay, either directly or indirectly, any part of the fee for the Petition for a Nonimmigrant Worker (USCIS Form I-129) that your employer completed and filed with the USCIS on your behalf.

• Your H-1B employer may not require you to pay, either directly or indirectly, a penalty for terminating employment before an agreed-upon date. Further, cost reimbursement provisions fall within the category of prohibited penalties.  Therefore, your employer may not make any deduction from your paycheck, and may not otherwise collect a penalty (including reimbursement of costs), because you have terminated your employment before an agreed-upon date.
• Your employer may not make you pay employer business expenses (such as attorneys’ fees for preparation and filing of the LCA).

Working Conditions:

• Your employer must provide you with working conditions on the same basis and criteria as provided to similarly employed U.S. workers (such as work hours, shifts, vacation days, and sick time).

Notice:

• Your H-1B employer must provide you with a copy of the Labor Condition Application.

Records:

• Your employer must keep records of the hours you work and the wages you are paid.
• Your H-1B employer is required, in its payroll records, to show your wages as earnings for you, and not as payments to any other individual or entity.

If you are an H-1B employee in the New York City metro area or in New Jersey and you believe that your employer has violated any of these rights of yours, call New York City H-1B Employment Lawyer David S. Rich at (212) 209-3972 today.

What Other Rights Do I Have As An Executive Or A Professional Who Holds An H-1B Visa In New York Or New Jersey?

As an executive or a professional who holds an H-1B visa in New York or New Jersey, you fall within anti-discrimination statutes’ and wage-and-hour statutes’ definitions of employees.  Consequently, as an H-1B employee in New York or New Jersey, you enjoy the same rights as other executives and professionals.  These rights are quite broad, and they arise under federal law, state law, and, within the five boroughs of New York City, under City law.  For example, among your rights are the following:

• You have a legal remedy for breaches, by your employer, of your executive employment agreement.
• You have a right to any salary that you earned but that your employer has not paid to you.
• You may have a right to your unpaid bonus.
• You have a right to any commissions that you earned but that your employer has not paid to you.
• You have a right not to be discriminated against, on the basis of your membership in a protected class, in compensation.
• You have the right not to be fired or otherwise discriminated against in employment because of your membership in a protected class.
• You have a right not to be terminated or otherwise retaliated against because you engaged in protected conduct.
• You have a right not to suffer either quid pro quo harassment or hostile work environment
• If your employer is investigating you for sexual harassment, you have a right to fair procedures.
• Your employer must reasonably accommodate your disabilities or pregnancy-related conditions.
• You have a right to take, and to return to work after taking, medical leave, sick leave, or safe leave.
• After your employment ends, you have rights to temporary continuation of health care coverage.

If you are an executive or a professional who holds an H-1B visa in the New York City metro area or in New Jersey and you believe that you have been wrongfully terminated, you’ve been fired and you believe that your H-1B employer has not effected a bona fide termination of you, you believe that you’ve been denied salary, bonuses, commissions, or other wages that are owed to you, you have any other type of dispute with your H-1B employer, or you are negotiating your employment agreement or a business contract, call New York City H-1B Employment  Attorney David S. Rich at (212) 209-3972 today.