Brooklyn H-1B Visa Lawyers

Your employer sponsored you for an H-1B visa. They filed the paperwork, paid the fees, and brought you to the United States to work. But do you actually know what they’re legally obligated to do for you? What they promised the government when they signed that Labor Condition Application? What happens if they don’t follow through?

Here’s what most H-1B workers don’t understand: your employer made specific legal commitments to the Department of Labor when they sponsored you. They promised to pay you a certain wage. They promised to provide the same working conditions as U.S. workers. They promised not to use your labor to displace American workers. If they break these promises, there are serious consequences – and not just for them.

The problem is that many H-1B workers never see the Labor Condition Application. They don’t know what wage their employer promised to pay. They don’t know their employer is required to post notice of their hire. They assume that whatever the employer does must be legal because after all, the visa got approved.

This creates a power imbalance that some employers exploit. They pay less than the prevailing wage and hope you won’t notice. They “bench” you without pay when there’s no project and tell you that’s normal. They treat you differently than U.S. workers because they know you’re dependent on them for your immigration status.

If you’re in Brooklyn looking for an H-1B visa lawyer, you need someone who understands both sides of this equation – not just how to file a petition, but how to protect your rights once you’re here. Understanding what your employer owes you is the first step toward ensuring you get it.

The Four LCA Attestations Your Employer Made

Before your employer could file your H-1B petition, they had to submit a Labor Condition Application to the Department of Labor. In that LCA, they made four specific legal promises – attestations that carry the weight of law.

Attestation 1: Wages. Your employer promised to pay you at least the prevailing wage for your occupation in your geographic area, or the actual wage they pay to similarly qualified workers – whichever is higher. This isnt optional. Its not “best effort.” Its a legal requirement. If there paying you less then they promised, there violating federal law.

Attestation 2: Working conditions. Your employer promised that employing you wont adversley affect the working conditions of other workers in similar positions. You should have access to the same benefits, the same workplace protections, the same treatment as comparable U.S. workers.

Attestation 3: No strike or lockout. Your employer promised not to place you at a worksite where theres an active strike or lockout in your occupational classification. This protects both you and American workers from being used as strikebreakers.

Attestation 4: Notice. Your employer promised to provide notice of there intent to hire H-1B workers. This notice must be posted in two conspicuous locations at your worksite for at least 10 days. If your employer didnt post this notice, there already in violation.

These arent just formalities. Federal regulations require compliance, and the Department of Labor can investigate violations. But alot of H-1B workers dont even know these attestations exist, let alone what there entitled to under them.

Prevailing Wage – What It Means for Your Pay

The prevailing wage requirement is probaly the most important thing in your LCA, and the most commonly violated. Understanding how it works helps you know whether your being paid fairly.

The Department of Labor determines prevailing wages based on occupation, skill level, and geographic location. There four wage levels:

Level 1 (entry): Workers under close supervision who are performing routine tasks. This is the lowest wage, and USCIS sometimes questions whether Level 1 positions are truly specialty occupations.

Level 2 (qualified): Workers who have attained competency through experiance or education and work under general supervision.

Level 3 (experienced): Workers who have substantial experiance and can work independantly with minimal supervision.

Level 4 (fully competent): Workers who are experts in there field and may supervise others.

Your employer picked one of these levels when they filed your LCA. Whatever level they chose, there legally required to pay you at least that wage. If there paying you less – even slightly less – there violating federal law.

This matters beyond just your paycheck. If the Department of Labor discovers prevailing wage violations, your employer faces back pay liability, civil penalties, and potentialy debarment from the H-1B program. And if there debarred, that affects your ability to extend your status or your path to a green card through that employer.

Third-Party Placement and the Employer-Employee Relationship

If you work for a consulting or staffing company that places you at client worksites, your situation gets more complicated. USCIS scrutinizes these arrangements heavily becuase it can be unclear who actualy controls your work – the sponsoring employer or the client.

The fundamental question is whether a genuine employer-employee relationship exists between you and your H-1B sponsor. Key factors include:

Who pays your salary? Your sponsoring employer must pay you directly, not the client.

Who controls your work assignments? The sponsoring employer should determine where you work, what projects you take, and when you can be reassigned.

Who supervises and evaluates you? Performance reviews, training, and discipline should come from your sponsoring employer, not just the client.

Who can hire and fire you? The sponsoring employer must have ultimate authority over your employment.

As of January 2025, the H-1B Modernization Rule changed how USCIS evaluates these situations. Under the new rule, if your “staffed” to a third party – meaning you become part of there organizational hierarchy – USCIS may look at the third partys degree requirements rather then your sponsoring employers when determining whether its a specialty occupation.

What this means practicaly: if your staffing company places you at a client that dosnt normally require a bachelors degree for similar positions, your entire H-1B could be challenged – even if your sponsoring employer required a degree.

The Benching Problem – When Your Employer Must Pay You

Benching is what happens when theres no project available for you. Your employer has no work to assign, so you sit idle. This is common in the consulting and staffing world, and its one of the most abused areas of H-1B employment.

Heres what the law actualy says: if your in nonproductive status due to your employers decision – meaning they dont have work for you – they must continue paying you the wage specified in your LCA. The only exception is if YOU voluntarily request time off.

Some employers try to work around this by pressuring workers to “voluntarily” take unpaid leave. Some require workers to sign documents agreeing to unpaid bench time as a condition of employment. Some simply dont pay and hope workers wont complain becuase there afraid of losing there visa.

All of these practices are illegal. Your employer cannot:

– Force you to take unpaid leave when theres no project

– Require you to agree to unpaid benching in your employment contract

– Threaten your visa status if you dont accept unpaid time

– Pay you less then the LCA wage during slow periods

If your employer is benching you without pay, there violating the LCA and could face serious penalties. More importantly, your entitled to back wages for that time. A good H-1B lawyer can help you understand your options.

What Happens When Employers Violate the Rules

The Department of Labor’s Wage and Hour Division has authority to investigate H-1B violations. When they find problems, the consequences can be severe.

Back wages. Employers must pay all wages owed to affected workers, plus interest. For systematic violations affecting multiple workers over multiple years, this can add up to substantial amounts.

Civil money penalties. The DOL can assess penalties of $1,000-35,000+ per violation depending on severity and whether the employer has prior violations. One case resulted in over $1.5 million in penalties against a single employer.

Debarment. For serious or repeat violations, employers can be barred from using the H-1B program for one to three years. This means they cant sponsor new workers, cant extend existing workers, and cant pursue employment-based green cards for there H-1B employees.

How do violations get discovered? Several ways:

Employee complaints. Workers who realize there being underpaid or mistreated can file complaints with the DOL. These are confidential and protected from retaliation.

DOL audits. The DOL sometimes initiates investigations based on patterns in LCA filings or other intelligence. They may send questionnaires to current and former H-1B employees.

Whistleblowers. Disgruntled employees, former employees, or even competitors may report suspected violations.

Red Flags That Suggest Employer Problems

How do you know if your employer is following the rules or cutting corners? Look for these warning signs:

They wont show you the LCA. You have a right to see the Labor Condition Application filed for your position. Its supposed to be posted at your worksite. If your employer refuses to show you or claims they cant find it, thats concerning.

Your salary is lower then the prevailing wage. You can check prevailing wages for your occupation and location using the DOL’s Foreign Labor Application Gateway. If your being paid significently less then the prevailing wage for your position and level, your employer may be in violation.

They bench you without pay. As explained above, this is illegal. An employer that does this is demonstrating they dont take there LCA obligations seriously.

They charge you fees they shouldnt. Employers cannot deduct H-1B-related costs from your salary. If there charging you for visa fees, attorney costs, or other sponsorship expenses, thats a violation.

Your working conditions differ from U.S. workers. If similar workers at your company get benefits, paid time off, or other perks that your denied, that may violate the working conditions attestation.

They threaten your visa if you complain. This is retaliation and is itself illegal. Employers cannot use your immigration status as leverage to prevent you from reporting violations.

How Employer Issues Affect Your Green Card

If your planning to pursue a green card through your employer, there compliance record matters enormously. Heres why:

The employment-based green card process requires another Labor Condition Application (for the PERM labor certification) and sustained employment through the entire multi-year process. If your employer gets debarred from the H-1B program due to violations, your green card sponsorship dies with it.

Even short of debarment, employer problems create complications. USCIS may scrutinize petitions more heavily from employers with compliance issues. Audits and investigations can delay processing. An employer fighting DOL enforcement may not prioritize your immigration case.

This is why evaluating your employer matters before you commit to them long-term. An employer that cuts corners on H-1B compliance might do the same with your green card process. And by the time problems surface, youve potentially wasted years that could have been spent building a path to permanent residency with a better sponsor.

H-1B Portability – Changing Employers

If you realize your current employer has problems, your not stuck. H-1B portability allows you to change employers without starting the visa process over from scratch.

Under portability rules, you can begin working for a new employer as soon as they file an H-1B petition on your behalf – you dont have to wait for approval. This means if you find a better opportunity, you can take it relatively quickly.

Requirements for portability:

– You must be in valid H-1B status (not expired)

– You must have been lawfully admitted to the U.S.

– The new employer must file a complete H-1B petition

– You must not have worked without authorization

Finding a new employer willing to sponsor requires networking and job searching while employed, which can be challenging. But its far better then staying with an employer that mistreats you or puts your immigration status at risk through compliance failures.

A Brooklyn H-1B lawyer can help you understand your options if your considering a change. They can also help ensure the new petition is filed correctly so you maintain valid status throughout the transition.

How to File a Complaint If Your Rights Are Violated

If you beleive your employer is violating H-1B regulations, you have options for seeking enforcement. The process is confidential and your protected from retaliation.

File with the Department of Labor. The Wage and Hour Division investigates H-1B violations. You can file a complaint online, by phone, or in person at a local WHD office. You dont need an attorney to file, though having one helps navigate the process.

Document everything. Before filing, gather evidence of the violations. Pay stubs showing wages below the LCA amount. Emails discussing unpaid bench time. Comparisons showing different treatment from U.S. workers. The stronger your documentation, the more effective the investigation.

Understand the timeline. DOL investigations take time – months or even years in complex cases. During this period, your employer may become aware of the investigation. Having a plan for your immigration status during this time is important.

Know your protections. Employers cannot retaliate against workers who file complaints or cooperate with DOL investigations. Retaliation is itself a violation that can result in additional penalties. If your employer threatens or punishes you for raising concerns, document that as well.

Consider timing carefully. Some workers wait until there about to change employers or leave the country before filing complaints, to avoid workplace retaliation during active employment. Others file while still employed and rely on the legal protections against retaliation. There is no one right answer – it depends on your specific situation and risk tolerance.

An experienced H-1B attorney can help you evaluate whether filing a complaint makes sense in your situation and how to protect yourself throughout the process.

Finding the Right Brooklyn H-1B Lawyer

Brooklyn has a diverse community of skilled workers on H-1B visas across many industries. Finding the right legal representation matters, especialy if you have concerns about your current employer.

Look for employment law knowledge, not just immigration. The issues discussed in this article cross the line between immigration law and employment law. An attorney who understands both can help you navigate situations where your employer may be violating there obligations.

Ask about there experiance with employer compliance issues. Have they handled cases where employers violated LCA requirements? Do they know how to file complaints with the DOL? Can they help you evaluate whether your employer is following the rules?

Understand there approach to employer relationships. Some immigration lawyers work primarily with employers and may be reluctant to take cases adverse to there clients. Others focus on worker rights. Know where your potential attorney stands.

Get clear pricing. H-1B matters can range from straightforward transfers to complex disputes. Understand what your being charged for and what additional costs might arise if your case becomes complicated.

Find someone accessible. Immigration issues can become urgent quickly. You need an attorney who returns calls, answers questions, and keeps you informed about developments that affect your status.

Protecting Your Rights as an H-1B Worker

Your H-1B visa gives you the right to work in the United States in a specialty occupation. It also comes with protections – your employer made legal commitments when they sponsored you, and your entitled to hold them to those commitments.

If your being paid less then the prevailing wage, your employer is breaking the law. If your being benched without pay, your employer is breaking the law. If your being treated worse then U.S. workers, your employer may be breaking the law. And you have options for addressing these problems without necessarily jeopardizing your status.

The power imbalance between H-1B workers and employers is real, but its not absolute. Federal regulations protect you. The Department of Labor can investigate on your behalf. And H-1B portability means you can move to a better employer if needed.

Find a Brooklyn H-1B lawyer who understands both your immigration rights and your employment rights. Someone who can help you evaluate whether your employer is following the rules, and who can advise you on options if there not. Your visa may depend on your employer, but your rights dont have to be sacrificed in the process.

The H-1B program was designed to bring skilled workers to the United States while protecting both foreign workers and the domestic labor market. When employers follow the rules, everyone benefits. When they dont, workers suffer and the integrity of the program is undermined. Knowing your rights is the first step toward ensuring you get what your entitled to.

Dont assume your employer is doing everything correctly just becuase your visa was approved. Dont accept benching without pay becuase you think you have no choice. Dont stay silent about violations becuase your afraid of losing your status. You have more options then you might realize, and the right legal guidance can help you navigate them without putting your future at risk.