H1B benching
Return to main "H1B Issues" pageThe term "benching" refers to the practice of an employer placing in nonproductive status without pay. Benching of H1B employees is prohibited by law. When an employer signs the attestations in a labor condition application, the employer represents that the H1B employee will not be put into such status. The Department of Labor explained it thusly:
"By signing and filing the LCA, the employer attests that for the “entire period of authorized employment, the required wage rate will be paid to the H-1B nonimmigrant(s). Wage rate means the remuneration (exclusive of fringe benefits) to be paid, stated in terms of amount per hour, day, month or year. The required wage must be paid to the employee “cash in hand, free and clear, when due.” An H-1B nonimmigrant, who is not in “nonproductive status” (i.e., not performing work), “shall receive the required pay beginning on the date when the nonimmigrant ‘enters into employment’ with the employer,” that is, when the nonimmigrant “first makes him/herself available for work or otherwise comes under the control of the employer, such as by waiting for an assignment, reporting for orientation or training, going to an interview or meeting with a customer, or studying for a licensing examination, and includes all activities thereafter.”
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Under the INA’s “no benching” provisions, the employer is obligated to pay the required wage even if the H-1B nonimmigrant is in “nonproductive status” (i.e., not performing work) “due to a decision by the employer (e.g., because of the lack of assigned work) ….” But the employer does not have to continue to pay the H-1B nonimmigrant if there has been a bona fide termination of the employment relationship or if the H-1B nonimmigrant is in nonproductive status due to conditions unrelated to employment that remove the nonimmigrant from his or her duties at his or her “voluntary request and convenience” or render the H-1B non-immigrant unable to work."
