Sponsorship Red Flags

Where an H-1B worker is not performing work and is in a nonproductive status due to a DECISION BY THE EMPLOYER — the regulation gives lack of assigned work as its example — the employer must still pay the required wage: the full pro-rata amount due for a salaried employee, or a full-time week of forty hours for an hourly employee. 'Between projects', 'on the bench' and 'waiting for a client' are descriptions of an employer decision, not exceptions to it.

A deduction from wages may not recoup a business expense of the employer, and the regulation names attorney fees and other costs connected to the performance of H-1B program functions the employer is required to perform — the preparation and filing of the labour condition application and of the H-1B petition are its own examples. A deduction that takes the wage below the required wage to pay for the employer's petition is the situation this provision addresses.

An employer must not require, directly or indirectly, that an H-1B nonimmigrant pay a penalty for ceasing employment before an agreed date. Bona fide liquidated damages are a different thing and ARE permitted: under applicable state law they are amounts fixed by the parties at the inception of the contract as a reasonable approximation of anticipated damage, where a penalty is not. The label on the clause does not decide which it is.

An employer may not intimidate, threaten, restrain, coerce, blacklist, discharge or in any other manner discriminate against an employee — a term that includes a former employee and an applicant for employment — because that person disclosed information to the employer, OR TO ANY OTHER PERSON, that they reasonably believe evidences a violation, or because they cooperated or sought to cooperate in an investigation or other proceeding concerning the employer's compliance. The protection covers a reasonable belief; it does not require being proved right.

A finding of retaliation carries a civil money penalty and disqualification from filing petitions under section 204 or section 214(c) of the Immigration and Nationality Act for at least two years. Separately, an H-1B worker protected by that provision may be allowed to seek other appropriate employment in the United States, provided they are otherwise eligible to remain and work. The specific penalty amounts are adjusted for inflation and are not stated here; the Department of Labor publishes the current figures.