What Is “Benching” for H-1B and L-1 Visa Holders?

Coming to work in the US is a dream come true. However, for many people holding H-1B and L-1 visas, benching can be a threat to this dream if their sponsoring employer does not actively engage them in productive work. Navigating the complexities of visas can be tough especially if you end up in a situation where you were benched for an extended time. Alina Kats is the best immigration attorney in New York to help you deal with the challenges of moving or temporarily staying in the United States. She understands each case is unique and provides personalized service that best suits your situation and goals.

The H-1B and L-1 visa programs are crucial pathways for skilled foreign workers to gain employment in the USA. However, they are often exploited by employers, leading to devastating outcomes for the workers. Problems with these visa programs can have far-reaching consequences. A gap in pay for more than two months makes it difficult for H-1B and L-1 workers to maintain and demonstrate maintenance of status, resulting in immediate job loss and long-term damage to a worker’s career and immigration status. It can also affect case approval and may require traveling to fix the status.

Read on to learn more about benching, how it occurs, and when to consult an immigration lawyer to explore options like transferring to a new H-1B or L-1 sponsor or seeking an alternative employer while maintaining your visa status.

What Is Benching?

Benching occurs when H-1B or L-1 visa holders are still employed by their sponsoring employer, but not working actively. This usually happens when the employer has not had immediate work assignments for the visa holder for some time.

It can also be due to a variety of other reasons, such as:

• A project that was completed
• No new projects are underway
• Delay in project availability
• Waiting for licenses or permits
• The economic situation of the employer

Benching in the context of H-1B or L-1 visas can be illegal and result in serious consequences for both the employee and the employer, especially if it extends for six months or more. The only way an employer can stop paying an H-1B or L-1 employee is through bona fide termination. If you’re unsure about your rights or your employer’s obligations, consult an experienced immigration law firm in Brooklyn to ensure you are protected and compliant with U.S. immigration laws.

Related article: Understanding The H-1B Visa Journey: Opportunities And Challenges

What Are H-1B and L-1 Visas?

H1-B and L1 visas are the most common temporary work visas that allow foreign nationals to come and work in the United States. While an H-1B is a non-immigrant visa that enables US employers to hire foreign workers, particularly in specialty occupations, an L-1 visa allows US companies to transfer employees from foreign office to US offices for some time.

The primary difference between these visas is that an L-1 visa is reserved for employees who are transferred within a multinational company to a US branch, also called intra-company transfer, while an H-1B visa is for highly skilled foreign workers hired by a US company.

If you are an H-1B or L-1 visa holder and have come to the United States to work, you must have adequate knowledge of the legal obligations regarding pay during periods of no-productivity to ensure compliance with US immigration laws.

Do Employers Have to Pay H-1B & L-1 Visa Workers During Benching?

Yes. Sponsoring employers must pay workers the required wages even during the nonproductive periods that result from their business related conditions. Benching that results from employer’s circumstances does not mean they are no longer obliged to pay the required wage to the employee.

In case the employee is not working for reasons unrelated to the employment, such as voluntary time off, medical leave, or hospitalization, the employer is under no obligation to pay during that time.

When Does the Obligation to Pay Begin?

The obligation to pay H-1B workers for nonproductive time starts under the following conditions:

• When the employee is present for work, such as reporting to orientation or starting the training.
• 30 days after an employee has entered the US, especially in the case of H-1B workers. Even if they have not started working, employers are obliged to pay them within 30 days of their arrival.
• When the employee is present 60 days in the US, under H-1B status. It also applies to workers who transfer employers or change roles. Employers must start paying them within 60 days of approval from USCIS, whether they have started working or not.

How Much Does an Employer Usually Pay During Benching?

The amount of money the employer will pay during nonproductive time depends on the worker’s terms of employment.

They may be as follows:

• Full-time salaried workers who must be paid their full wage rate
• Full-time hourly workers who must be paid for 40 hours per week or as per the employer’s defined full-time scheduled
• Part-time workers who must be paid for the hours stated in the petition or the average hours worked within the approved range

The required wage must meet or surpass the rate listed on the worker’s Labor Condition Application (LCA).

When Does the Employer’s Obligation to Pay End?

If an employer terminates an employee bona fide, they are no longer under obligation to pay the employee.

This includes:

• Notifying USCIS that the employment has ended
• Canceling the H-1B or L-1 visa petition
• Paying the worker for their return transportation to their home country, in certain cases

Following the necessary steps regarding termination of employment, and payment is necessary. Lack of compliance with the law can result in legal penalties for the employer.

What to Do if You Are Being Benched?

Talk to Your Employer and Discuss Your Situation.

Talk to your manager or HR department and find out the reasons for being benched. Also, ask them what steps they are taking to get you back on a project.

Get Legal Advice

If you don’t know about your legal rights regarding benching, seek legal consultation. An immigration attorney can help you understand more about your immigration status and your options.

Explore Other Options

If you think your employer does not have work for you, consider looking for a new job within the H-1B or L-1 category to ensure your employment status remains active.

Challenges You May Face After Benching

When a H-1B or L-1 visa holder has been benched for an extended time, the biggest concern is the ability to maintain status.

To be eligible to file an H-1B transfer, USCIS requires proof that you have been maintaining your H-1B status as prolonged periods of benching can raise questions about your status validity. In such cases, pay stubs are the primary evidence to prove maintenance status. However, if you have been benched without pay for 6 months, you will most likely not have recent paystubs, which can make it difficult for you to show your current legal status.

Without recent paystubs, it becomes very difficult for a worker to establish their legal status. If the gap in the pay records reflects 60 days or less, they can rely on the 60-day grace period. Remember, a lengthier absence will not be covered by this grace period.

If you are benched without pay, you have a legal right to complain to the Department of Labor (DOL) regarding unpaid wages. However, without a pay record, it becomes difficult to prove maintenance of status, and most likely USCIS will approve the H-1B for consular processing. This would require you to leave the US, possibly go for stamping if your current visa has expired, and return on valid H-1B status.

How Employers Should Treat Their H-1B & L-1 Employees?

Employers are expected to follow certain rules when it comes to their H-1B & L-1 employees.

They are:

• An employer must guarantee that payment to H-1B or L-1 workers will exceed the wage they pay to other employees with similar qualifications or experience for the job.
• An employer will ensure that no lockout or strike will affect the H-1B or L-1 worker’s job.
• If the employer terminates the job before the visa expires, they must agree to pay the worker the cost of returning to his or her country.
• The employer must give notice when filing the Labor Condition Application to the specific representative who is involved in the employee’s collective bargaining for the particular job.
• The employer should have specific documents for possible inspection such as a copy of the Labor Condition Application, a proof document of the worker’s salary, a breakdown of how the salary was calculated, and documents that show the payment of prevailing wage.

According to the DOL, foreign visa workers have to be paid the correct wage for any work time that is not productive time due to employment-related conditions at that time. This includes insufficient assigned work, lack of a permit, or undertaking study for a licensing exam.

The H-1B and L-1 visa programs represent an ideal opportunity for professional growth and career advancement for many foreigners in the United States, but limited knowledge regarding the laws often causes problems. Seeking guidance from a qualified immigration attorney can help you proceed in the right direction. Alina Kats and her team provide expert, personalized, and compassionate legal assistance with benching-related matters and make sure all your concerns are addressed timely. They provide sound legal advice and services that increase your chances of retaining your work visa and fulfilling your dream of living in the US.