At this time of the year, we receive many queries from employers about their obligation to pay H-1B workers who are either entering the US for the first time in H-1B status or are changing status to H-1B. Predominantly these queries are from employers for whom the H-1B beneficiary has entered into employment with them but not the third party end-client.
Under the Immigration & Nationality Act (INA), the employer’s obligation to pay the H-1B beneficiary the petition-stated wages begins when the beneficiary “enters into employment with the employer” i.e. when the worker first makes himself available to work or otherwise comes under the control of the H-1B petitioner (not the end-client) but in no case later than within 30 days of employee’s entry into the U.S. in H-1B status or 60 days from employee’s change of status to H-1B if the employee is in the U.S.
It is noteworthy to mention that the H-1B beneficiary becomes eligible to work for the employer on the date set forth in the approved H-1B petition filed by the employer. Further, this 30/60 day rule only applies to H-1B beneficiaries who have not yet “entered into employment” i.e. this rule does not apply to H-1B workers who have made himself available for work or have come under the control of the employer by waiting for an assignment, reporting for training, going to interviews, preparing for licensing examination, etc.
Employer’s obligation to pay the H-1B workers ends upon “bona fide termination” of the H-1B beneficiary. In order to effectuate this “bona fide termination” we recommend the employer to notify the US Citizenship & Immigration Services that the relationship has been terminated so that the H-1B petition can be cancelled and also to withdraw the certified Labor Condition Application (LCA) that was filed on behalf of the H-1B worker. Also where appropriate, the employer must provide the H-1B worker with payment for transportation to his home country.