What Does the ACWIA Require of Employers Regarding Payment of Wages to H–1B Nonimmigrants for ‘‘Nonproductive Time’’?

In response to concerns and information about many situations in which H–1B workers were brought for employment in the United States but were then ‘‘benched’’ in a nonproductive status and paid little or none of the required wages, Congress enacted an explicit requirement— consistent with the Department’s regulation—that the employer pay wages to an H–1B worker in ‘‘nonproductive status’’ in certain
circumstances. This obligation is effective ‘‘after the H–1B worker has entered into employment with the
employer,’’ but otherwise not later than 30 days after the worker’s date of admission into the U.S. (if entering the country pursuant to the petition) or 60 days after the date the worker ‘‘becomes eligible to work for the employer’’ (if already present in the country when the petition is approved). The Department is considering whether the H–1B worker ‘‘enters into employment’’ when he first makes himself available for work, such
as, for example, by reporting for orientation or training, or when he actually begins receiving orientation or
training or otherwise performs work or comes under the control of his employer. Once the worker ‘‘enters into
employment’’ (or after the 30 or 60 day period expires), the ‘‘benching’’ rules apply.

Subject to the qualifications discussed below, an H–1B worker who is already present in the U.S. is considered by the  department to be  ‘‘eligible to work for the employer’’ (and thus covered by the ‘‘benching’’ rules) upon the completion of the visa issuance process; matters such as the worker’s obtaining a State license would not be relevant to this determination. In a nutshell, the ‘‘benching’’ provisions forbid an employer paying an H–1B worker less than the required wage for nonproductive time, except in situations where the nonproductive status is due either to the worker’s own initiative or to circumstances rendering the worker unable to work. The Department’s enforcement experience has demonstrated that some employers bring H–1B workers into this country and then, for a variety of reasons, ‘‘bench’’ the workers in non-productive status and fail to pay them the wages attested on the LCA. Most frequently,such ‘‘benching’’ occurs where the employer lacks work to assign to the H–1B worker, or the worker is engaged in training or development activities (such as orientation in the employer’s operations or studying for a licensing exam). It is entirely appropriate—as Congress recognized in the ACWIA enactment—for an employer to be prohibited from evading its wage obligations to such workers, who are under the employer’s control and entitled to the LCA-attested wages. The ACWIA provisions recognize, however, that the employer should not be liable to pay wages for the worker’s time which is nonproductive for reasons unattributable to the employer, such as the worker’s hospitalization or requested leave-of-absence (consistent with the conditions related to the H–1B worker’s maintenance of legal status in the U.S.).

Provisions where the employer is not required to pay the H-1B employee due to the employee’s own reasons

• 64 Fed. Reg. 647 ATTACHED - The ACWIA provisions recognize, however, that
  the employer should not be liable to pay
  wages for the worker’s time which is nonproductive for reasons
  unattributable to the employer, such as the
  worker’s hospitalization or requested leave-of-absence (consistent
  with the conditions related to the H–1B worker’s maintenance of legal status in
  the U.S.).

• 64 Fed. Reg. 647 - The regulation does not require
  payment of such wages where the nonproductive status is due to reasons unrelated
  to employment (such as the worker’s voluntary request and convenience or
  non-work-related circumstances rendering him/her unable to work), unless such payment is required by
  INS as a condition of the H–1B workers’ continued
  maintenance of lawful status in the United States, or is required by some other statute,
  such as the Family and Medical Leave Act. Thus, the required
  wage need not be paid to the worker who—on  his/her own
  initiative—requests ‘‘time off’’ to conduct research on matters
  unconnected to his/her employment, or requests a delay in his/her first day
  of work in order to have an  opportunity to tour the U.S. before undertaking
  duties of employment. However, the employer would not be relieved of the
  wage obligation to H–1B worker(s) for any required leave of absence, even if
  such leave of absence includes U.S. workers.
  

•  65 Fed. Reg.  80219 ATTACHED - Circumstances where wages need not be
  paid.
  If an H-1B nonimmigrant experiences a period of nonproductive status due to
  conditions unrelated to employment which take the nonimmigrant away from his/her
  duties at his/her voluntary request and convenience (e.g., touring the U.S.,
  caring for ill relative) or render the nonimmigrant unable to work (e.g.,
  maternity leave, automobile accident which temporarily incapacitates the
  nonimmigrant), then the employer shall not be obligated to pay the required wage
  rate during that period, provided that such period is not subject to payment
  under the employer's benefit plan or other statutes such as the Family and
  Medical Leave Act (29 U.S.C. 2601 et seq.) or the Americans with Disabilities
  Act (42 U.S.C. 12101 et seq.). Payment need not be made if there has been a bona
  fide termination of the employment relationship. INS regulations require the
  employer to notify the INS that the employment relationship has been terminated
  so that the petition is canceled (8 CFR 214.2(h)(11)), and require the employer
  to provide the employee with payment for transportation home under certain
  circumstances (8 CFR 214.2(h)(4)(iii)(E)). - Federal Register / Vol. 65, No. 245
  / Wednesday, December 20, 2000 / Rules and Regulations
  

• DOL's Comments regarding Unpaid Leaves of
  Absence at an H-1B Employee's Request Are in Error:
  With
  regard to unpaid leave, DOL states in the Preamble that the Department will not
  "relieve an employer from liability simply because the employee agreed to
  periods without pay in the employment contract." 65 Fed. Reg. at 80171. The
  statute provides no authority for such a provision, which unreasonably
  interferes with the freedom of U.S. employers and H-1B workers to
  negotiate fairly and enter into arms-length agreements for terms and conditions
  of employment that would otherwise comply with DOL regulations. Many employment
  agreements provide for unpaid disciplinary leave. Accordingly, if an H-1B worker accepts an offer of employment that
  includes provisions for unpaid disciplinary leave, and is put on disciplinary
  leave without pay pursuant to the terms of the employment agreement, it should
  not be considered "nonproductive status due to a decision of the employer"
  because the H-1B worker agreed to the terms of employment and it was the act of
  the H-1B nonimmigrant that caused the disciplinary action under the employment
  agreement. Since many of the provisions of ACWIA require employers to treat H-1B
  workers in the same manner as U.S. workers, such as offering the same benefits
  etc., it is inconsistent with these provisions to require employers to
  discipline H-1B workers in a different manner from U.S. workers when U.S. workers are
  subject to disciplinary unpaid leave. Requiring U.S. employers to
  discipline H-1B workers in a different manner than it disciplines similarly
  employed U.S. workers does not further the stated goals of protecting H-1B and
  U.S. workers and does nothing to improve the competitiveness of the U.S.
  workforce. - - "AILA InfoNet Doc. No. 01051407 (posted May. 14, 2001)" See Link [http://www.aila.org/content/default.aspx?bc=1016|6732|8914|3143]