H-1B Employees

Whether you are a skilled foreign worker employed in certain specialty occupations or a U.S. worker discriminatorily displaced by an H-1B sponsoring employer, federal and California laws protect your wages, working conditions and civil rights.

The H-1B non-immigrant visa program, under the Immigration and Nationality Act (INA), allows foreign workers to temporarily work in a specialty occupation (generally those requiring a bachelor’s degree or its equivalent) for a sponsoring U.S. employer for a maximum of six years. Aside from the applicable California laws protecting workers, the H-1B program provides additional federal protections with regard to wages and discrimination to protect both U.S. and foreign workers.

At Garay Law, we can explain your rights and options regarding H-1B visas. Contact our employment law attorneys in Silicon Valley to learn more.

Silicon Valley Area H-1B Issues — Displaced Employees And H-1B Workers

Sponsoring employers must comply with strict federal reporting requirements to ensure that they are not displacing qualified U.S. employees with lower paid foreign workers. H-1B visa holders must also remain employed by the sponsor or transfer to another employer in a comparable capacity to avoid losing their legal immigration status and being forced to return home. Employees in these specialty occupations often fail to exercise their rights or are too afraid to do so. You do not have to continue to work for your employer if the employer is abusing or exploiting you.

Wage And Hour Violations

H-1B visa holders often suffer some of the same illegal wage and hour practices as U.S. workers, such as unpaid overtime, a lack of proper meal periods and rest periods, and misclassification as an exempt employee (see our respective sections explaining these issues in detail). However, the competitive and temporary nature of the H-1B visa can worsen employer violations of wage and hour laws, as sponsors know foreign workers fear losing their jobs and their legal immigration status. Further, federal law places additional wage requirement on H-1B sponsors to protect both U.S. and foreign workers.

If You Have Been Displaced By An H-1B Sponsor

The INA sets forth certain prerequisites for employers wishing to employ H-1B nonimmigrant workers. To obtain H-1B status approval, the employer must first file a Labor Condition Application (LCA), with the Department of Labor. If you have questions regarding your employers’ requirements, we will guide you through the entire process in California.

Federal and California laws covering H-1B issues, along with court cases interpreting them, are complex and constantly changing. Whether you have been displaced by an H-1B sponsor or are an H-1B visa holder denied the overtime, meal periods, rest periods or other legal rights to which you are entitled, you will need the expertise and services of a labor law attorney knowledgeable in H-1B issues.

Employee Rights:

H-1B workers are granted a number of rights. The employer must give the worker a copy of the LCA. The employer must pay the worker at least the same wage rate as paid to other employees with similar experience and qualifications or the local prevailing wage for the occupation in the area of employment, whichever is higher. The employer must pay for nonproductive time caused by the employer or by the worker’s lack of a license or permit. The employer must offer the worker fringe benefits on the same basis as its other employees. Also, the employer may not require the worker to pay a penalty for leaving employment prior to any agreed date. However, this restriction does not preclude the employer from seeking “liquidated damages” pursuant to relevant state law. Liquidated damages are generally estimates stated in a contract of the anticipated damages to the employer caused by the worker’s breach of contract.

You are entitled to many more rights. If you have questions, you can rely on our experience to guide you down the right path.

Record Keeping, Reporting And Notices:

The record keeping, reporting and notice requirements of the H-1B visa program help ensure that employees, both U.S. and foreign, are not deprived of their rights under federal law. Often, noncompliance with these requirements is a sign that an employer is trying to avoid complying with wage and hour standards. As an employee, you are entitled to access to many of these recorded and reported items, and you must exercise those rights to protect yourself and your co-workers.

Notice:

There is a notice requirement. The employer must inform U.S. workers of the intent to hire a foreign worker by providing notice of the filing of the LCA to the bargaining representative if there is one, or, if there is no bargaining representative, by posting notice of filing in two conspicuous locations at the employer’s establishments or by providing electronic notice (see below). The notice must be provided on or within the 30-day period before the date that the labor condition application is submitted to the Labor Department. There are many specific requirements your notice must state, and we can help you decide if it was submitted correctly.

Discrimination

In addition to the wage and hour protections, specialty occupation employees have California and federal law protecting them as well, including the Immigration and Nationality Act (INA) and Title VII of the Civil Rights Act of 1964. Both statutes prohibit discrimination against any employee based on national origin and other related forms of discrimination based on race or religion. If you feel as though you have been discriminated against, we can help.

Contact Our H-1B Lawyers Today

Given the complex interplay between federal and California legal protections, if you feel your rights have been violated, please contact Garay Law today, where our attorneys and staff can provide a free consultation to discuss your potential legal issues.

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Attorney Jose R. Garay

JOSE GARAY, APLC has successfully litigated and mediated (as lead counsel and co-counsel) wage and hour cases and obtained certification and appointment as class counsel in many class action lawsuits against some of the largest high-tech employers.

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Representative Cases

Garay Law is a premier boutique firm specializing in class action litigation serving clients all over California in the employment law realm. We have a strong sense of social responsibility and are committed to protecting and seeking enforcement of the rights of the California worker.

The following are representative cases Garay Law was involved in. To learn more, select one below:

  • Construction Workers: Employees Claim Meal And Rest Period Violations And Unpaid Overtime
    Case No. BC510859, Superior Court Of The State of California For Los Angeles County
  • California Labor Commissioner Cites Two Ukiah Restaurants Nearly $2 Million For Wage Theft Violations
    News Release No.: 13-57 · California Department of Industrial Relations
  • Construction Workers: Wage And Hour Lawsuit: NP Mechanical Inc.
    Case No. RIC 1307433
  • Independent Contractors: Breavex Incorporated, et al.
    Case No. 30-2011-00488995-CU-OE-CXC (Orange County Superior Court)
  • Supermarket Overtime, Rest Periods, Meal Period Violations: B & V Enterprises Inc.
    Orange County Superior Court
  • Drivers: Meal And Rest Periods, Overtime: One Stop Brake Supply Santa Ana Inc.
    Superior Court of the State of California County of Orange
  • Inside Salesperson Failure To Pay Commissions: Confidential Retail Defendant
    Superior Court of the State of California County of Orange
  • Inside Sales Person: Monex Deposit Co.
    Case No. 30-2013-00649669-CU-OE-CXC
  • Wage/Hour: Zynga Inc.
    Case No. 12-CV-217392 (Santa Clara County Superior Court)
  • Wage/Hour: Accenture LLP
    Case No. 30-2011-00496293-CU-OE-CXC
  • Wage/Hour: Novellus Systems Inc.
    Case No. 111CV212898
  • Wage/Hour: Citrix Systems Inc.
    Case No. SACV11-01121 DOC (RNBx)