Benching H1B & E3s (Unproductive Time)

Benching H1B and E3s (Unproductive Time)

The Department of Labor regulations as they pertain to the H1B dictates, that the worker must be paid the required wage for all nonproductive time caused by an employer’s decision. This includes events like an employer shutdown, lack of a permit, or time taken for an employer-mandated licensing exam, and is essential for any time that the H1B employee is not performing work or is unproductive during the work period listed on the Labor Condition Application.

H-1B workers must be paid the wage rate or salary indicated on the Labor Condition Application. Accordingly, at any point when an H-1B employee is not performing work or not in productive status due to a decision of the employer, (closures, holidays, a class did not make, and other periods of nonproductive time), the H-1B employee must be paid their wages. The employee must continue to receive the wage listed in the LCA filed to support the H-1B petition. An exception would be for reasons unrelated to employment, e.g. a voluntary absence from work, hospital stay, or a written request for a leave of absence.

Is an employee who works a 9-month academic year considered “benched” during the summer break?

No. A two or three- month break during the summer is not considered benching if the employee agrees to the compressed annual salary payments before the commencement of the employment. DOL regulations governing H1B and E3 Specialty Occupation Workers indicate that: “An employer that is a school or other education institution may apply an established salary practice under which the employer pays to H-1B nonimmigrants and U.S. workers in the same occupation classification an annual salary in disbursements over fewer than 12 months, provided that the nonimmigrant agrees to the compressed annual salary payments before the commencement of the employment and the application of the salary practice to the nonimmigrant does not otherwise cause him/her to violate any condition of his/her authorization under the INA to remain in the U.S. “ 20 CFR 655.731(c)(4).

For more information, contact Immigration Services at immigration@tamu.edu or 979-862-1719. 

Disclaimer

The contents of this website are for information purposes only and are not intended as legal advice. Immigration Services provides immigration administrative to support Texas A&M University - Corpus Christi, (the Petitioner or Employer) when it seeks to petition an employment-based petition for a faculty or staff member. We do not represent the employee. Employees are encouraged to consult with an immigration attorney of their choice, at their own expense, for advice on individual immigration matters.