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November-December 2013

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NAVIGATE RESOURCES: Table of Contents InfoNet aila.org Find a Member ? ! Contact a Mentor Shop Agora FOR MORE ON WAGES: first makes him- or herself available for work or otherwise comes under the control of the employer, such as reporting for orientation or studying for a licensing exam. It starts no later than 30 days after the H-1B worker is first admitted into the United States pursuant to the H-1B petition, whether or not the H-1B worker has "entered into employment" and no later than 60 days after the date the H-1B worker becomes eligible to work for the employer (the approved date found on the Form I-797, Notice of Action), whether or not the H-1B worker has "entered into employment." As for H-1B workers already in the United States, employment starts on the filing date of the Petition for a Nonimmigrant Worker (Forms I-129/I-129W) by the sponsoring employer under the portability provisions (8 USC §1182(n)). The best way to avoid committing initial benching is for employers to implement a policy of adding H-1B employees to their payroll as soon as they are available for work. The 30– or 60-day timeframes expressed in 20 CFR §655.735 are only outer limits, but do not apply if the H-1B worker reports that he or she is ready to start work and is authorized to do so. In that event, the obligation begins when the worker so reports. "Classic Benching" This type of benching occurs when an employer suffers a business change or downturn and fails to pay the required wage rate for nonproductive time. In the IT consulting context, this may occur when a thirdparty project ends and the employer does not yet have a new project for the H-1B consultant. Be aware that if the employer asks the H-1B worker to take a voluntary leave of absence, WHD will consider this as "benching." See Mao v. Nasser, ARB Case No. 06-121 (ARB Nov. 26, 2008), at 3–6. Employers should implement a policy that H-1B employees shall be paid Prevailing Wage Dilemmas (Recording) Purchase > Prevailing Wage Determinations for H-1B Visas and Labor Certifications (Recording) Purchase > their pro-rata salary or average hourly wages unless they are on voluntary leave (such as vacation or medical leave) or their employment is properly terminated. "Terminal Benching" "Terminal benching" occurs when an employer fails to complete a bona fide termination under 20 CFR §655.731(c)(7)(ii) or the H-1B work authorization expires. See Huang v. Ultimo Software, ARB Case No. 09-056, 044 (ARB March 31, 2011). Payment for nonproductive time is not required after a bona fide termination of employment. WHD requests evidence of such termination and requires proof of the employer's notification to U.S. Citizenship and Immigration Services (USCIS) that the employer relationship has been terminated; the petition was cancelled; and the employee was offered payment for transportation home where required by USCIS requirements. Where a bona fide termination is not completed, full salary or wages plus the value of health benefits and possibly even pension, 401(k), or simple IRA contributions may be assessed in the form of back wages and DOL-ordered compensation. Id. at 5. At the extreme, DOL has assessed nearly three years of compensation for an incomplete bona fide termination. See Limanseto v. Ganze, 2011-LCA-005 (ALJ June 30, 2011), at 8. N OVEMBER/ D ECEMBER 2013 9

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