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Temporary Non-Productive Status Of H-1B Employees

Benching

  • Under the U.S. Department of Labor LCA regulations, benching is a period that an H-1B Employee is in Nonproductive Status due to a choice by the employer.
Examples of Benching:

  • Annual plant shuts down for holidays or retooling; summer recess or semester breaks; pre-employment training; mandatory vacation; or disciplinary action.
Examples of Non-Productive Status that are not Benching:

  • Employee chooses to take extended leave to care for aN ill family member, to travel, or for other reasons outside of the scope of employment.
Rationale

  • The U.S. Department of Labor (DOL) acknowledges that these regulations require employers to pay H-1B Employees in periods of mandatory company-wide furloughs even when U.S. workers are not being paid. The DOL states that the statutory language is clear. The DOL also recognizes that where an employer is an H-1B Dependent Employer or a Willful Violator, the employer may have additional non-displacement obligations to U.S. workers. Finally, the DOL notes "other laws provide U.S. workers with rights and remedies for an employer's discriminatory practices."
LCA Employer Obligations

  • In filing an LCA, the employer agrees that it will pay nonimmigrants at least the local prevailing wage or the employer's actual wage, whichever is higher, and pay for non-productive time. It will offer nonimmigrants benefits on the same basis as U.S. workers.
Penalties

  • If the DOL finds that an employer has failed to pay wages to an H-1B Employee as required during certain periods of non-productive status the employer may be subject to the following penalties:

    • Payment of Back Wages to any H-1B Nonimmigrant who was not paid in accordance with the LCA attestations;
    • Civil Money Penalties- up to $5,000 per violation;
    • Disqualification from approval of Nonimmigrant Petitions filed by employer for at least two years for violations; and
    • Other administrative remedies as appropriate.
 

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