The U.S. Department of Labor ordered a U.S. employer and its owner and president to pay two employees over $291,000 in back pay, return of application fees, plus pre-and post-judgment interests.

Both employees were sponsored for H-1B visas by the employer. When they made themselves available to the employer, they were not employed and never received payment. The Administrative Judge found that the two employees were “benched” and ordered the employer and its owner/president to pay their wages for the duration of the respective validity of their H-1B visas, in addition to the return of the immigration fees paid to the employer by each employee. The judge tacked on the post-and pre-judgment interests on the penalty.

Employers are reminded that “benching” H-1B employees is strictly prohibited. An employer cannot fail to pay an H-1B employee because of insufficient work or lack of a license or permit. Employers should distinguish this impermissible activity from voluntary requests for leave by H-1B workers that are unrelated to employment, such as caring for a sick family member, which is permissible activity.

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Photo of Shaoul Aslan‡ Shaoul Aslan‡

Shaoul Aslan focuses his practice on a wide range of immigration and nationality matters, representing both corporate clients and individuals before the U.S. Citizenship and Immigration Services (formerly Immigration and Naturalization Service), the U.S. Department of State and the U.S. Department of Labor.

Shaoul Aslan focuses his practice on a wide range of immigration and nationality matters, representing both corporate clients and individuals before the U.S. Citizenship and Immigration Services (formerly Immigration and Naturalization Service), the U.S. Department of State and the U.S. Department of Labor. Shaoul counsels on immigration matters pertaining to international transfer of personnel and other immigration-related issues. He develops an appropriate strategy to obtain the necessary nonimmigrant visa classification to permit employment authorization for the transferred employees and their dependents, obtaining the required approvals from the Citizenship and Immigration Services, and the issuance of the visa to the employee and his or her dependents. The counseling may also involve obtaining permanent resident status for the employee and his and her dependents.

 Admitted in the District of Columbia. Not admitted in Virginia. Practice limited to federal immigration practice.