Related Practices

• Business
• Immigration

For employers who employ workers under the H-1B visa program, Congress and the Department of Labor (“DOL”) provide powerful incentives to keep those workers gainfully occupied; nonimmigrant workers generally must be paid whether they are productively working or not.  Although this rule was originally provided for only in DOL regulations, Congress added its stamp of approval when it passed the American Competitiveness and Workforce Improvement Act of 1998 (“ACWIA”).  

ACWIA provides for a 30/60 day rule for paying these “bench time” wage payments.  Under this rule, an employer’s obligation to pay a nonimmigrant worker’s wages arises either 30 days after the worker is admitted into the United States, or, if the worker is already in the United States, 60 days after he or she becomes eligible to work for his or her new employer.  The approval of the petition to transfer the worker to a new employer constitutes being “eligible to work.”  At the expiration of the 30 or 60 day period, the worker must be paid the prevailing wages listed in the Labor Condition Application, regardless of work status.

Once the worker enters into employment with the employer, however, the appropriate wages must be paid, whether the 30 or 60 day period has passed or not.  The DOL considers any activity that meets the definition of hours worked under the Fair Labor Standards Act (“FLSA”) as meeting the test of entering into employment.  The concept of hours worked under the FLSA is quite broad and generally encompasses work-related training and orientation.  Consequently, if an employer brings a nonimmigrant worker into the country and immediately provides mandatory training or orientation and then releases the worker awaiting a work assignment or start-work date, the intervening idle time must be compensated under the bench time rules, even though the 30 or 60 day period has not yet expired.  Training or orientation normally meets the test of hours worked under the FLSA, and the worker has therefore entered into employment within the meaning of ACWIA and the DOL regulations.

Once the worker has entered into employment, all periods of unproductive time must be compensated as well unless they fall within certain exceptions.  For example, if a nonimmigrant worker is injured and unable to work due to a non work-related accident, the bench time wage rules do not apply.  However, as DOL regulations also require substantial parity in benefits between nonimmigrant workers and their native counterparts, any paid time off or disability policies may cover such a situation.

The DOL can impose significant fines and even take more drastic action in policing these regulations.  Since not every nuance of the bench time regulations can be covered within the confines of this article and every employer presents a unique set of circumstances and working conditions, each situation where an employer finds a nonimmigrant worker in a non-productive status should be carefully analyzed to ensure compliance with the law.