How well can I pin my employer for violating labor laws on compensation and benefits???

pranaykumar

By pranaykumar,
in H1B : General

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pranaykumar Member

pranaykumar

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Can anyone help me understand how stronger is my case and when and how to react on this. Should I start filling WH4 before it is too late , or wait as I am planning to go to vacation in India for December.

 

 

Background :

 

I started working for a Desi consultant in Virginia as soon as I graduated in May 2011. I was in OPT and the offer letter stated that my base pay is 51K and not major benefits are detailed.

 

Employer immediately placed me in a Forture 100 company as a QA analyst . There was a prime vendor between my employer and client . After joining I slowly worked through the system and started working in lead/managerial roles ( no direct reports) and working on project execution , facilitation , process compliance verification roles .

 

I was on OPT and I was never worried about my pay for almost an year , then I was a bit concerned and approached my employer on phone about my pay concern ( Since he was from same region in India we use to have conversations on phone). I never got any positive response all I hear is Prime vendor not paying him well , so he cannot afford to give me any benefits.

 

 

In April 2012 he filed for my H1b and took 5000 USD by cash and the exchange happened in a suspicious way . There might be some proof that he got the money , but it will be a weak case .

 

I left to India as there was a query on OPT , and at the USCIS office they recommended me to take that action to not go out of status till october 2012. I never recieved any pay as I was not working at client .

 

Then I went to India and had tons of trouble in getting my h1b stamped and my employer did not help me in this aspect. I had to work a lot convincing people at my client to get the client letter and finally my H1b was approved to be started in October 2013.

 

I landed in USA on October 2012 and started working with the same client again on my H1b . In May 2013 I had to relocate to a different facility for the same client to work in a remote mode ( Employer did file LCA for this ) .

 

Here are my concerns .

 

1) My W2 pay in 2013 is 5K less than wage agreed upon in LCA ( Initial and amendment filed) .

 

2) I reviewed LCA to see why prevailing wage is low , and I see that my job level is selected a 1 , and I am sure that the role I am performing is 3 or 4 . So , my employer provided false information on LCA.

 

3) Even though I am salaried as per LCA , I never get consisten pay on my paystubs , it is somewhat proportional to my timesheets for work .

 

4) I get very minimal benefits , no 401k , no pension , they have never shared insurance plan until I requested one . I am pretty sure no one will work in this conditions.

 

5) No relocation was provided by employer when I had to relocate 1500 miles for the client

 

6) Employer took 5000 dollars for my H1b

 

7) I had no base pay increase in last 3 years . Infact my W2 pays are approximately mentioned below.

 

2011 - 25K ( For 7 months)

2012 - 36K ( Accounting for loss of pay for my visa rejections)

2013 - 45K ( Full year on H1b)

2014 - Same trend as last year

 

8) I feel that my employer is preventing me to go on direct payroll of prime vendor . As I faced this issue multiple times last year.

 

9) I feel that my W2 pay is less even on my OPT time period for same job , not sure if there are any laws that protect an OPT student . I feel that most of the employers exploit this loop hole.

 

 

 

 

 

 

 

 

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JoeF Advanced Member

JoeF

Posted
Posted

First, never have business conversations on the phone, or if, send an email summarizing the conversation. It is important to have a paper trail.

Second, why in the world did you pay money for an H1??? Only shady, fraud employers ask for money. You should have left that employer as soon as he asked for money.

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wiweq Advanced Member

wiweq

Posted
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Follow these two steps:

1. File WH4 at your state's DOL website. This is for safety of your H1b rights and they will ask your employer to pay you the missing salary. If employer found guilty they will get punishment including barring from filing H1b and GC anymore. 

Filing WH4 is also important because it will make sure that you were aware about your H1b rights and you complained when you saw violations happening. 

 

2. For visa/ immigration violations, contact ice.com.

 

Just fyi, no insurance, no 401k, no pay raise are just signs of bad employer not any violations.

But yes, paying less in LCA in pay cycles, taking $5K for H1b fees are violations and for those you must report.

Once again, US consulting model is not appropriate for H1b requirements, stay away from them. 

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pranaykumar Member

pranaykumar

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Hello everyone , Thanks for responding to my request. I am going ahead and filing my WH4 for the following and attaching appropriate support documents.

 

I am also discussing on changing my employer and going to Primevendors payroll.

 

Below is highlevel overview of the claim.

 

(a) Employer supplied incorrect or false information on the Labor Condition Application (LCA).

 

 I reviewed LCA to see why prevailing wage is low , and I see that my job level is selected a 1 , and I am sure that the role I am performing is 3 or 4 as I do lot of Admin and managerial roles . So, my employer provided false information on LCA. If you look at the letter my employer and prime vendor ( XXXXX) supplied to USCIS it is evident on my job duties performed. 

 

If you read some attachments my employer explains my job role (in resume and letter to DHS ), which is nowhere related to Level 1 job. If he is agreeing my job duties why did he give wrong information on LCA .

 

I don’t think American employees would be willing to look at a pay like that for the job role performed.

 

Employer provided that I am a salaried employee on LCA , but if you look at paystubs , It clearly reflects that I get paid hourly and inconsistently .

 

(b)   Employer failed to pay nonimmigrant worker(s) the higher of the prevailing or actual wage.

 

My W2 pay in 2013 is 4K less than wage agreed upon in LCA (Initial and second amendment filed). See attached W2 document for further information.

 

Looks like it will be a same trend this year when compared to last year. So, there will be a definite violation this year if it follows the same trend.

 

This year by end of September my W2 total earnings are $32k, so with 3 months left the projection would be that I will get $42k .  Which will be $7k less than LCA wage.

 

© Employer failed to pay nonimmigrant worker(s) for time off due to a decision by the employer (e.g., for lack of work) or for time needed by the nonimmigrant worker(s) to acquire a license or permit.

 

 Even though I am salaried as per LCA , my paystubs are somewhat proportional to my timesheets for work ( Example : For a 4 day week work if I have to take a day off as I am sick , I never get paid for that) . I also do not get paid if the timesheets from my client are not through the system , or I take half day time off for doctor visits .

 

If I am salaried then I deserve to get payments as per my contract  . Employer should honor continuous pay on 5th and 20th of this month as per offer letter.

 

See attached approximate net pay received from my bank statements that have direct deposits from my employer.

 

 

(d) Employer made deductions from nonimmigrant worker’s wage (e.g., for nonimmigrant petition processing; for food and housing expenses when the nonimmigrant worker is traveling on the employer’s business; for tools and equipment necessary to perform employer’s work) that caused the wages paid to fall below the nonimmigrant worker’s required wage.

 

Employer took 3300 dollars cash for my H1b. If I am liable to pay $1250 for premium processing , I don’t think I should be paying all the other money .

 

No relocation was provided by employer when I had to relocate 1500 miles to work in XXXXX and also for any of the interview process or initial relocation when I first moved to XXXXX in 2011.

 

Attached are some documents that will support the proof of this claim.

 

(e) Employer failed to provide fringe benefits to nonimmigrant worker(s) equivalent to those provided to U.S. worker(s) (e.g., cash bonuses, stock options, paid vacations and holidays, health benefits, insurance, retirement and saving plans.

 

 I do not have any benefits beyond base pay. No 401k , no pension , no sick leaves , they have never shared insurance plan until I requested one . I am pretty sure no one will work in these conditions.  

 

 

(f) Employer does not afford nonimmigrant worker(s) working conditions (hour, shifts, and vacation periods) on the same basis as it does U.S. worker(s), or the employment of nonimmigrant worker(s) adversely affects the working conditions of U.S. worker(s).

 

I have 2 week accrued vacation benefit , and the definition is not properly defined , I don’t think employer did justice helping me understand how this actually works. And I don’t feel like I completely got this benefit. I don’t think American citizens do not go for this kind of benefits.

 

 

(q) Other issues

 

 

  1.  I had no base pay increase in last 3 years . Infact my annual  W2 pays are approximately mentioned below.

    2011 - 25K ( For 7 months of work)

    2012 - 36K ( Accounting for loss of pay when I was stuck in India for H1b stamping)

    2013 - 46K ( Full year on H1b)

    2014 - $32K till end of September ( $35K last year around same time)

 

 

So how is someone supposed to leave in a state in an urban area with such a low pay ( Gross income after taxes is even less than that ) .


2) I feel that my W2 pay is less even on my OPT time period for same job , not sure if there are any laws that protect an OPT student . I feel that most of the employers exploit this loop hole.

 

 

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wiweq Advanced Member

wiweq

Posted
Posted

"Can anyone let me know when I can expect a call from the WHD office? "

 

=> I got the call in 10 days. They will appoint an investigation officer, who will talk you in detail.  I'll recommend to call them and be in touch if they have received your documents. 

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  • 2 weeks later...
  • 5 months later...
pranaykumar Member

pranaykumar

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Updates for the team ...

 

Officer who is handling my case indirectly told me that there are potential claim regarding LCA labor level which is still skill level1 and he thinks it is 2 . Which I am not in complete agreement yet . But will wait for a firm answer before I reply them my review.

 

There is too much delay for resolving this issues . Everytime I reach out they say they are still investigating . They never give me a definite answer on when this will be done .

 

One thing I am pissed off is the reason that my employer took money for H1b in form of cash , I reported this and they said they cant proceed with not much additional proof.  I dont see a point here , I feel that it is their job to do investigation on my claim , which they are backing off . It does not matter how small the amount is  , it is a crime ...

 

At this point of time there is no information on when this come to a closure ,... will update if I hear anything else...

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  • 3 months later...
pranaykumar Member

pranaykumar

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Still waiting on some decision ...

 

All I know at this point of time is ...

 

1) The argument of me paying money cannot be strong as I do not have proof.

2) Case worker did tell me that he is proposing legal team to review the LCA violation of me working at a higher level from job description vs. Level 1 that is used for LCA . 

3) He is also pursuing the legal issues of employer not giving an offer letter to me for H1b visa. 

4) Employer not paying for relocation /flight charges 

5) Some minor adjustments / back wages on some missed pay stubs or irregularities in them...

 

Soon , I have to expose myself to my employer as DOL will be going with final discrepancy info to my employer . Then there will be legal action if employer will deny any of DOL demands .

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  • 3 weeks later...
pranaykumar Member

pranaykumar

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This is becoming interesting now as my employer is ready to file my h1b extension .

 

I have received a new offer letter infact there was never one for my first filing . And this is 50K and LCA is approved for H1b extension as 50K for Wage level 1.

 

I have a new offer letter from my employer that is worse than the first I received for my OPT 5 years ago .  Even vacations and US holidays have been removed from the new offer letter.

 

I sometimes wonder how he is confidently doing all these when he has DOL raiding their facility .

 

Some concern I heard is that prime vendor only pays 35 dollars per hour for this job and they are not increasing it . I dont care who is paying what , my stand now is to make sure I get paid for the work done by me equal to any other US Employee . 

 

If prime vendor is at fault it is my employers problem , and not sure how they are legally liable to this mess . If it is the client itself firing US employees for low pay high skill immigrants then I expect DOL to figure it out as there are lot of things around this in the news.

 

 

To date there is no action being taken , and no news from DOL yet ....

 

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  • 3 weeks later...
pranaykumar Member

pranaykumar

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Have news for you finally ......

 

I will be recieving $18k in back wages , with my immediate pay and LCA to be renegotiated to match my job description .

 

Worse part was there is no penalty or anything to the employer other than this back wages . 

 

Now , I need some advice.

 

I have a chance to re appeal this , but not sure . Here are my reasons for re appeal .

 

DOL has determined that I will be on Level 1 for the first 5 months of h1b , and Level 2 from there on till this October , and recommended level 3 from this october.

 

From my perspective the job did not change, and I have already worked on this for 18 months on my OPT . So , I dont  agree to this level change assessment .

 

 

 

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  • 3 months later...
pranaykumar Member

pranaykumar

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Need help ... any attorney willing to take up my case.

 

Recieved Back Wages and awaiting final letter from DOL .

 

My employer terminated my contract yesteday , as the contract with the client ended yesterday .  Can I file a Whistle Blower Retaliation ?

 

DOL does not think that this is retaliation , but the end of project .

 

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